Citation: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 25 February 2013
Judges: McClellan CJ at CL, Garling J, Button J (judgment delivered by Button J)
Background
Three co-offenders were sentenced in the District Court for a series of serious firearms offences. The offending involved a chain of supply: one offender sourced prohibited firearms and ammunition, a middle party facilitated sales, and the third sold the weapons to an undercover police operative. The offences occurred between May and July 2010 and included the sale of prohibited pistols, supply of ammunition, and a conspiracy to obtain firearms from Queensland.
The three matters came before the Court of Criminal Appeal together, but in different combinations. Two offenders sought leave to appeal their own sentences, one offender was the subject of a Crown appeal only, and one offender faced both his own appeal and a Crown appeal against the same sentence. The sentencing judge had been appointed by the court at first instance before the High Court decided Muldrock v The Queen (2011), which significantly changed the correct approach to standard non-parole periods.
Legal Issues
- Whether the sentencing judge committed "Muldrock error" by treating the standard non-parole period as a mandatory starting point rather than a guide
- Whether any identified Muldrock error actually warranted a lesser sentence
- Whether factual findings made differently for one co-offender should have been applied to another
- Whether aggregate sentences imposed on the offenders were manifestly excessive (offender appeals) or manifestly inadequate (Crown appeals)
- Whether indicative sentences within an aggregate sentencing structure are separately amenable to appeal as distinct grounds
Decision
The court accepted that Muldrock error had occurred in at least one case, given that sentencing predated the High Court's clarification of how standard non-parole periods operate. Under Muldrock, the standard non-parole period is a legislative guideline, not a mandatory starting point or benchmark. However, identifying the error did not automatically lead to a different result: the court examined whether, applying the correct approach, a lesser sentence was warranted in law. In each instance where Muldrock error was found, the court was not persuaded that the sentence should be reduced.
On the question of co-offender fact-finding, the court considered whether a favourable factual finding made in sentencing one offender (for example, about the operability of firearms) was required to be applied to a co-offender. The court found no error in the sentencing judge's approach and declined to treat inconsistency in factual findings across co-offenders as a ground for reduction.
Regarding the Crown appeals for manifest inadequacy, Button J acknowledged that the aggregate sentences were lenient, and that he personally would have imposed longer terms. Nonetheless, the court applied the well-established principle that a Crown appeal on manifest inadequacy requires more than a conclusion that the sentence was lenient or that the appellate judge would have imposed more. The aggregate sentences were found to sit at or near the boundary of permissible discretion, having regard to the substantial weight the sentencing judge placed on subjective features and a merciful approach. The Crown appeals were dismissed.
On the procedural point about indicative sentences, the court confirmed that where a judge imposes an aggregate sentence under the relevant provisions of the Crime (Sentencing Procedure) Act 1999, the indicative sentences for individual offences are not separately amenable to appeal as independent grounds. The aggregate sentence is the operative sentencing decision.
Orders Made
Orders made in relation to Mr Nguyen (as recorded in the provided text):
- Leave to appeal granted to the applicant Mr Nguyen
- Appeal by Mr Nguyen against sentence dismissed
- Crown appeal against Mr Nguyen's sentence dismissed
[Orders for Mr Truong and Mr Le were not located in the provided text.]
Key Takeaways
- Identifying Muldrock error (treating the standard non-parole period as a mandatory starting point) does not automatically produce a reduced sentence: the Court of Criminal Appeal must also be satisfied that a lesser sentence is warranted in law before intervening.
- Inconsistent factual findings made in favour of one co-offender at sentencing do not automatically require the same finding to be applied to another co-offender; the absence of such cross-application was not itself an error.
- In dismissing the Crown appeals, the court reaffirmed that manifest inadequacy requires more than appellate disagreement with the length of a sentence: a sentence that sits within the range available to a sentencing judge exercising a merciful discretion will not be disturbed.
- Under the aggregate sentencing regime in the Crime (Sentencing Procedure) Act 1999, indicative sentences for individual counts are not separately amenable to appeal as distinct grounds; only the aggregate sentence is the operative decision for appeal purposes.
- A sentencing judge's heavy weighting of subjective features, including remorse, addiction, and rehabilitation prospects, can bring an otherwise lenient aggregate sentence within the bounds of available discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crime (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)
Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Butler v R [2012] NSWCCA 23
- Cunningham v R [2005] NSWCCA 416
- Hanania v R [2012] NSWCCA 220
- Mulato v R [2006] NSWCCA 282
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- R v Dunn [2003] NSWCCA 169
- R v Goktas [2004] NSWCCA 296
- R v Howard [2004] NSWCCA 348
- R v Koloamatangi [2011] NSWCCA 288
- R v Rae [2013] NSWCCA 9