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Court of Criminal Appeal 5 March 2013

PHAN, Thanh Dinh v R

[2013] NSWCCA 49

Drugs
CRIMINAL LAW SENTENCE APPEAL TOTALITY WHETHER AGGREGATE NON PAROLE PERIOD EXCESSIVE

Citation: PHAN, Thanh Dinh v R [2013] NSWCCA 49
Court: Court of Criminal Appeal, NSW
Date: 5 March 2013
Judge(s): McClellan JA, Hidden J, Hislop J

Background

The appellant pleaded guilty in the District Court to two charges of importing a commercial quantity of pseudoephedrine, offences carrying a maximum sentence of 25 years under the Criminal Code Act 1995 (Cth). The offences occurred in March 2007. The sentencing judge found the appellant was the principal organiser of two large consignments of pseudoephedrine arriving in Australia, describing him as "the business end in Australia of whatever was occurring elsewhere."

Critically, the appellant committed these offences while on bail for similar, though less serious, drug importation and conspiracy offences committed in 2003. For those earlier offences, he had received cumulative sentences totalling 7.5 years with an effective non-parole period of 4.5 years, running from 1 September 2006. The new sentences imposed by Williams DCJ totalled 12 years with a non-parole period of 8 years, commencing when the existing non-parole period expired on 28 February 2011.

The practical effect of this structure was a combined sentence across all offences of 16.5 years, with an overall non-parole period of 12.5 years. That overall non-parole period represented approximately 76 percent of the total sentence. The appellant sought leave to appeal on the ground that this ratio was excessive.

  • Whether the sentencing judge erred in fixing the non-parole period such that, when accumulated upon the existing sentences, the overall non-parole period represented an excessive proportion of the total sentence
  • Whether the principle of totality required the sentencing judge to account for the combined effect of accumulation on the non-parole period ratio
  • Whether the period spent by the appellant on remand under restrictive conditions, and his limited contact with his daughter, were relevant considerations in fixing the non-parole period

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. Hidden J (with McClellan JA and Hislop J agreeing) accepted that the overall non-parole period came to approximately 76 percent of the total sentence, compared to the 60 percent ratio under the earlier sentences. However, the Court found that this disparity did not establish error.

The Court noted that Williams DCJ had expressly turned his mind to the question of totality and had stated that it would be inappropriate to impose a crushing sentence. While the remarks on sentence did not explicitly address the non-parole period in the accumulation analysis, the Court declined to infer from that silence that his Honour had overlooked the issue.

Following the High Court's decision in Hili v The Queen; Jones v The Queen [2010] HCA 45, the Court reaffirmed that the discretion in fixing the proportion between a head sentence and a non-parole period is broad, provided longstanding sentencing principles are observed. Those principles require that a non-parole period reflect not only rehabilitation but also retribution and deterrence.

Given the serious nature of the offending, particularly that the 2007 importations were carried out while the appellant was on bail for similar offences, the Court was satisfied the overall result fell within the proper exercise of the sentencing discretion. The combined sentence still left the appellant with four years of parole eligibility, which the Court regarded as a substantial period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's discretion in setting the ratio between a head sentence and a non-parole period is broad, particularly following the High Court's rejection of any fixed "norm" in Hili v The Queen; Jones v The Queen [2010] HCA 45.
  • Where sentences are accumulated upon an existing non-parole period, the resulting overall ratio of non-parole period to total sentence can lawfully exceed the ratio applicable to the earlier sentences, provided the sentencing judge has genuinely considered totality.
  • Committing offences while on bail for similar conduct constitutes a serious aggravating circumstance, and its weight is not exhausted merely by making the new sentences cumulative on the existing ones.
  • No error is established simply because a sentencing judge's remarks do not expressly address every arithmetical consequence of the accumulation structure, provided the remarks demonstrate awareness of the totality principle.
  • Adverse remand conditions and restricted family contact are capable of being taken into account as relevant factors in fixing a non-parole period, consistent with R v Jerrard (1991) 56 A Crim R 297, though those matters did not alter the outcome here.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.11(1)
- Customs Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1986 (NSW)

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520
- Power v The Queen (1974) 131 CLR 623
- Deakin v The Queen (1984) 11 A Crim R 88
- Bugmy v The Queen (1990) 169 CLR 525
- R v Jerrard (1991) 56 A Crim R 297