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Court of Criminal Appeal 27 November 2008

LUU, Phong Tran v R

[2008] NSWCCA 285

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING

Citation: LUU, Phong Tran v R [2008] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 27 November 2008
Judge(s): Giles JA; Latham J; Mathews AJ

Background

The appellant was a 39-year-old Vietnamese-born man who had come to Australia after a difficult journey, including being rescued from a sinking boat. Police executed search warrants at his home in December 2006 following surveillance and telephone intercepts. The searches uncovered heroin and crystalline methylamphetamine (ice), two pistols with ammunition, a large sum of cash, numerous mobile phones and SIM cards, and a false driver's licence bearing his photograph.

The appellant pleaded guilty in the District Court to four charges: unauthorised possession of a prohibited pistol, possession of an unregistered pistol, and two deemed supply offences involving the two different drugs. Seven additional matters were placed on a Form One to be taken into account on sentence. The sentencing judge found that the pistols were kept as tools of his drug dealing trade, and sentenced him to an effective total of six years and six months imprisonment with a non-parole period of four years and four months.

The appellant sought leave to appeal against sentence on three grounds, contending that the sentencing judge had erred in relation to a psychiatric diagnosis, had overstated the objective seriousness of the offending, and had failed to make the sentences sufficiently concurrent.

  • Whether the sentencing judge erred by failing to treat the appellant's provisional psychiatric diagnosis (post-traumatic stress disorder and polysubstance abuse) as a mitigating factor that reduced his culpability or the need for general deterrence and denunciation.
  • Whether the sentencing judge erred by characterising the offending as "objectively most serious."
  • Whether the sentencing judge erred by failing to impose greater concurrency across the sentences for the multiple offences.

Decision

On the psychiatric diagnosis ground, the Court examined the report of Dr Tran, a psychiatrist, who provided a provisional DSM-IV diagnosis of post-traumatic stress disorder and polysubstance abuse in remission. The Court found that the report did not support a reduction in the appellant's culpability, nor did it suggest any diminished need for general deterrence or denunciation. The Court accepted that the appellant's background and addiction history were genuinely difficult, but concluded that the psychiatric material did not carry the mitigating weight the appellant claimed.

On the objective seriousness ground, the Court interpreted the sentencing judge's language as intended to emphasise the gravity of the offending rather than to make a precise technical finding that it occupied the very worst category of such offences. Read in that light, the characterisation was not erroneous. The sentences themselves, which fell well below the available maximum penalties, were consistent with that reading.

On the concurrency ground, the Court applied the principle that sentences should be partly cumulative where the criminality in one offence cannot be comprehended within the sentence for another. The possession of two different drug types constituted two distinct acts of deemed supply, not a single episode. Similarly, possessing two pistols in connection with drug dealing represented significant additional criminality that was not already captured by the drug sentences. The Court noted that the Firearms Act reflects a strict legislative policy on firearm possession, and offences against it warrant substantial independent recognition. No error in the exercise of the sentencing discretion was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A psychiatric report tendered at sentencing will not automatically moderate an offender's culpability or reduce the weight given to general deterrence and denunciation; the report must actually support those conclusions on its face.
  • Where a sentencing judge describes offending as "objectively most serious," appellate courts will read that characterisation in context, and will not treat it as erroneous if the sentences imposed are consistent with a meaning that emphasises gravity rather than a precise ceiling-of-the-range finding.
  • Possessing two different prohibited drugs giving rise to separate deemed supply offences constitutes distinct criminality, not a single episode, for the purpose of deciding concurrency versus accumulation.
  • Under the principle confirmed in Cahyadi v R, the test for concurrency is whether the sentence for one offence can comprehend and reflect the criminality of another; where it cannot, partial accumulation is appropriate to avoid under-punishing the total criminality.
  • The Court of Criminal Appeal reaffirmed that firearms offences carry significant independent weight, reflecting strict legislative policy, and should not simply be absorbed into sentences for associated drug offences.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Ma and Pham v R [2007] NSWCCA 240
- Mill v The Queen (1988) 166 CLR 59
- R v Allen [2008] NSWCCA 11
- R v Cromarty [2004] NSWCCA 54
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Tolley [2004] NSWCCA 165
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168