Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
• Hearing dates: 10 September 2012
• Decision date: 25 February 2013
• Before: McClellan CJ at CL at [1]; Garling J at [2]; Button J at [3]

Decision

Truong v R

(1) Leave to appeal granted.

(2) Appeal dismissed.

R v Le

(1) Crown appeal dismissed.

Nguyen v R; R v Nguyen

(1) Leave to appeal granted to the applicant Mr Nguyen.

(2) Appeal dismissed.

(3) Crown appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - series of firearm and drug offences - multiple offenders - error in fact finding of co-offenders - no error in not applying fact-finding error - Muldrock error identified - no lesser sentence warranted at law - sentences not manifestly excessive; CRIMINAL LAW - crown appeal against sentence - whether aggregate sentence manifestly inadequate - indicative sentences not amenable to appeal as separate ground
• Legislation Cited: Crimes Act 1900; Crime (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Criminal Procedure Act 1986; Drug Misuse and Trafficking Act 1985; Firearms Act 1996; Weapons Prohibition Act 1998
• Cases Cited: Butler v R [2012] NSWCCA 23; Cunningham v R [2005] NSWCCA 416; Hanania v R [2012] NSWCCA 220; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Mulato v R [2006] NSWCCA 282; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; 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
• Texts Cited: R A Hulme J, "After Muldrock - sentencing for standard non-parole period offences in NSW" (2012) 24(10) Judicial Officers' Bulletin 81
• Category: Principal judgment
• Parties: Regina (respondent/applicant); Morgan Truong (applicant); Hoang Minh Le (respondent); Huy Nguyen (applicant/respondent)
• Representation: Counsel: N Noman SC (Regina); W Dawe QC (Truong); S Odgers SC (Le); N Parsons (Nguyen); Solicitors: Solicitor for Public Prosecutions (Regina); Constantine Pavlos Solicitor (Truong); Legal Aid of NSW (Le); David Cowan Solicitor (Nguyen)
• File Number(s): 2010/244017 (Truong); 2010/243668 (Le); 2010/244134 (Nguyen)

Decision under appeal

• Jurisdiction: 9101
• Before: Lakatos SC DCJ (Truong); Sides QC DCJ (Le); Johnstone DCJ (Nguyen)
• File Number(s): 2010/244017 (Truong); 2010/243668 (Le); 2010/244134 (Nguyen)

Judgment

1 McClellan CJ at CL: I agree with Button J.

2 Garling J: I agree with the judgment of Button J.

3 Button J: This is a series of appeals and applications for leave to appeal against sentence that were heard together. The position is complicated by the fact that in the case of Mr Truong there is an application for leave to appeal against sentence by the offender, but no Crown appeal; in the case of Mr Nguyen there is an application for leave to appeal against sentence by the offender and a Crown appeal against sentence; and in the case of Mr Le there is a Crown appeal against sentence, but no application for leave to appeal against sentence by the offender. For ease of comprehension, I shall not refer to the offenders as applicants or respondents, but rather by name.

Morgan Truong v R

Offences

4 Mr Truong was sentenced by Judge Lakatos SC in the District Court of New South Wales on 5 August 2011. He pleaded guilty to two offences. The second of those contained four matters on a Form 1.

5 The first offence was knowingly take part in the sale of a prohibited firearm, namely a Bruni pistol. That was an offence against s 51(1A) of the Firearms Act 1996. The offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years.

6 The second offence was knowingly take part in the sale of a prohibited pistol, namely a .25 calibre Melior pistol. Again, that was an offence against s 51(1A) of the Firearms Act. It also attracted a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years.

7 As indicated, four offences were contained on a Form 1 and to be taken into account with count two. The first was offering to take part in the sale of a pistol to a person unauthorised to possess it, namely a 9mm Beretta self-loading pistol. That offence was brought pursuant to s 51(1A) of the Firearms Act, and carried a maximum penalty of imprisonment for 14 years.

8 There were two offences of selling ammunition without seeing a buyer's license or permit. Those two offences were brought pursuant to s 65(1) of the Firearms Act, and carried a maximum penalty of a $5,500 fine.

9 The fourth and final offence on the Form 1 was conspiracy to knowingly take part in the supply of firearms, namely pistols. That was a common law offence with no maximum penalty. (It is noteworthy that s 51C of the Firearms Act creates an offence of conspiring to commit an offence against the Firearms Act in any place outside of New South Wales and imposes a maximum penalty identical to the penalty for the subject matter of the conspiracy. However, that provision is not apposite to the present appeal. There is no analogue in the Firearms Act of s 26 of the Drugs Misuse and Trafficking Act 1985). The substantive offence is created by s 51(1) of the Firearms Act and has a maximum penalty of imprisonment for 5 years. No standard non-parole period attaches to the offence.

Objective features

10 The facts can be summarised very briefly. As for count one, on 5 June 2010 the co-offender Mr Le agreed to supply Mr Truong with the firearm in question, a Bruni semi-automatic pistol, for the sum of $5,000. Mr Truong agreed to supply it to the co-offender Mr Nguyen for the sum of $7,500. Mr Nguyen agreed to supply the pistol to an undercover operative for the sum of $9,500. The arrangements were put into effect on 7 June 2010, and Mr Truong netted $2,500.

11 As for count two, later in the same month Mr Le agreed to supply Mr Truong with a .25 calibre Melior semi-automatic pistol for an unspecified amount. Mr Truong agreed to supply Mr Nguyen with the pistol for $7,500. Mr Nguyen agreed to supply the undercover operative with the pistol for $8,000. The agreements were fulfilled on 22 June 2010. It is not clear on the evidence how much profit Mr Truong made.

12 The facts of the four offences on the Form 1 were as follows. As for the first, on 16 May 2010, Mr Truong offered to supply the Beretta pistol to Mr Nguyen for $7,500. Very soon afterwards, Mr Nguyen offered to sell the same firearm to the undercover operative for $10,000. For some reason, the transaction did not proceed.

13 The second offence on the Form 1 was committed between 9 and 10 June 2010. It will be recalled that that was shortly after the occasion when count one was committed. Mr Le supplied Mr Truong with three .38 calibre rounds. Mr Truong supplied them to Mr Nguyen, who in turn supplied them to the undercover operative.

14 The third offence on the Form 1 featured a supply of ammunition on 22 June 2010, the same day upon which count two occurred. Again, Mr Le supplied Mr Truong with six .25 calibre rounds. Those were supplied to Mr Nguyen, who in turn supplied them to the undercover operative.

15 The final offence on the Form 1 was the conspiracy. In short, on 6 July 2010, Mr Le informed Mr Truong that he would be able to obtain at least five firearms in Queensland. Mr Truong contacted Mr Nguyen, and informed Mr Nguyen that he, Mr Truong, would shortly be obtaining five firearms for sale. Mr Nguyen informed the undercover operative. Mr Le did indeed travel to Queensland, and on return was arrested. He was found to have possession of three replica pistols, and it was his intention to modify those pistols in order to make them operable.

Subjective features

16 Mr Truong pleaded guilty at an early stage and received a 25 per cent discount as a result. That discount is not impugned by either party to this appeal.

17 On arrest, Mr Truong made full admissions. His Honour found that he was remorseful.

18 His Honour accepted that the background to the offending of Mr Truong was that Mr Le owed Mr Truong some thousands of dollars. Being involved in these illicit transactions was a way for Mr Truong to seek to regain the sum in which he was out of pocket.

19 Mr Truong had enjoyed a basically happy and stable upbringing, and was in a loving relationship at the time of the offences and as at the date of sentence. He had left school in Year 10, and had had unskilled jobs. At one stage he had been unemployed, but there was a deal of evidence to demonstrate that he was a highly regarded worker. Over the years he had suffered from a serious gambling problem. He had also used cocaine, but his Honour was not persuaded that it had played any great role in his commission of the offences. In custody, he had been a quiet prisoner who was open to doing courses in order to further his rehabilitation.

20 The criminal record of Mr Truong was not unblemished. However, it was quite short. In 2008 he was charged with dealing with property suspected of being the proceeds of crime, and received a bond for six months. In 2009 he was charged with driving whilst his license was suspended. He received a bond for 12 months for the offence. He was subject to that bond when he committed the offences under consideration.

Sentences imposed

21 Annexed to this judgment is a diagram that seeks to explain the structure of the sentences imposed upon Mr Truong in a readily comprehensible form.

22 With regard to count one, which related to the Bruni pistol, his Honour imposed a head sentence of imprisonment for 4 years, to date from 22 July 2010 and expire on 21 July 2014, with a non-parole period of imprisonment for 3 years, to date from 22 July 2010 and expire on 21 July 2013.

23 With regard to count two, which related to the Melior pistol and took into account the Form 1, his Honour imposed a head sentence of imprisonment for 8 years, to date from 22 July 2010 and expire on 22 July 2018, with a non-parole period of imprisonment for 5 years, to date from 22 July 1010 and expire on 21 July 2015.

24 It can be seen that the sentence for count one is wholly concurrent with the sentence for count two. Furthermore, it is apparent that special circumstances were found with regard to count two; if that had not been the case, the non-parole period for the offence would have been imprisonment for 6 years.

GROUNDS OF APPEAL OF TRUONG

25 Six grounds of appeal were notified. I shall deal with each of them in turn.

Ground One

"His Honour the learned sentencing Judge erred in his application of section 54B(2) of the Crimes (Sentencing Procedure) Act 1999. The High Court in Muldrock v The Queen [2011] HCA 39 (5 October 2011), a decision passed after imposition of sentence in this matter by his Honour, held that section 54B(2) of the Crimes (Sentencing Procedure) Act 1999, was not framed in mandatory terms and that the standard non-parole period was not an appropriate starting point for the deliberation of sentence. His Honour at the time of sentence did not have the assistance of the reasoning of the High Court and was in error in his application of section 54B(2) of that Act."

Background and Submissions

26 This ground was founded upon the following portions of the remarks on sentence:

"Way's Case in the legislation says that the standard non-parole period applies to a mid-range case where an offender is convicted after trial and without any adjustment for any of the factors in s 21A including special circumstances and common law factors.

The offender has pleaded guilty and therefore there are reasons why the non-parole period should not be applied but as the courts have said, it is still relevant as a reference point or guidepost.

...

I consider, based on all those matters, that the offences fall below, but not substantially below, the mid-range of objective seriousness and the appropriate starting point is a non-parole period of eight years. I have noted that the offender pleaded guilty at the earliest opportunity and this, accordingly, warrants a twenty five per cent discount for its utilitarian value.

There are, as I have said, subjective factors which warrant a reduction of that non-parole period and also justify a finding of special circumstances."

27 Senior counsel for Mr Truong submitted that the process adopted by his Honour is inconsistent with the approach discussed in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. In short, it was submitted that the approach adopted by his Honour was too structured and prescriptive.

28 Senior counsel for the Crown submitted that his Honour correctly referred to the standard non-parole period as nothing more than a guidepost. She referred to Butler v R [2012] NSWCCA 23 in support of the proposition that it will be rare for remarks on sentence that predate the judgment in Muldrock v The Queen and refer to the standard non-parole period as a guidepost to be found to be erroneous by this Court. She submitted that, in truth, what occurred was an instinctive synthesis in accordance with Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

Determination

29 I respectfully suggest that, for ease of comprehension, grounds of appeal to this Court are formulated more pithily than the ground under consideration.

30 I consider that this ground can be dealt with quickly and without reviewing the history of this Court's reaction to the decision in Muldrock v The Queen over the past 16 months. Such a review is contained in R v Koloamatangi [2011] NSWCCA 288 at [9] - [21] and "After Muldrock - sentencing for standard non-parole period offences in NSW" (2010) 24(10) Judicial Officers' Bulletin 81 by R A Hulme J.

31 It seems to me that the submissions of senior counsel for Mr Truong have a degree of force. Whilst it is true that his Honour referred to the standard non-parole period as a reference point or guidepost, the latter extract from the remarks on sentence is suggestive to me of an approach that is not consistent with the principles enunciated in Muldrock v The Queen and Markarian v The Queen. Although it is a matter of interpretation, I consider that it is open to infer that, with regard to count two, his Honour took as a starting point the standard non-parole period of imprisonment for 10 years; made a finding that the objective seriousness of the offence fell below, but not substantially below, the mid-range of objective seriousness; as a result took as a starting point a non-parole period of imprisonment for 8 years (that point being below, but not substantially below, the standard non-parole period of 10 years); reduced that non-parole period by 25 per cent in order to reflect the utilitarian discount, arriving at a non-parole period of imprisonment for 6 years; and, finally, reduced that period of time by 1 year in order to reflect subjective features and special circumstances.

32 I consider that such an approach was overly prescriptive and inconsistent with the approach explained in Muldrock v The Queen, even bearing in mind the reference by his Honour to the standard non-parole period as a guidepost and the note of caution sounded in Butler v R at [26].

33 I emphasise that my opinion that this ground should be upheld is not founded on the mere fact that the remarks on sentence were delivered before the judgment in Muldrock v The Queen. As Davies J (with whom Whealy JA and Rothman J agreed) said in Butler v R, simply because remarks on sentence predate Muldrock v The Queen does not found a ground of appeal. That is especially the case when there has been a plea of guilty, and as a result the sentencing judge has referred to the standard non-parole period as a guidepost.

34 To the contrary, I consider that the ground should be upheld because, in this particular case, it is tolerably clear that his Honour has engaged in a process of reasoning that is rigid to the point of being inconsistent with Muldrock v The Queen and Markarian v The Queen.

35 In short, I would uphold this ground of appeal. Whether it would result in the reduction of any aspect of the sentence structure of Mr Truong is an entirely separate question, and depends upon the application by this Court of s 6(3) of the Criminal Appeal Act 1912. I shall deal with that question at the end of my consideration of all the grounds of appeal of Mr Truong.

36 In short, I would uphold ground one.

Ground Two

"His Honour the learned sentencing judge was misled by the presentation of inaccurate 'agreed facts'. This led his Honour to treat the offences of knowingly take part in the sale of a prohibited firearm as being more serious than was actually the case."

Background and submissions

37 This ground averted two errors of fact, one with regard to the Bruni pistol and one with regard to the Melior pistol. It is convenient to deal with them separately.

The first submission

38 This was founded on confusion that developed in the proceedings on sentence. It requires a little explanation. In a nutshell, the question was whether the Bruni pistol, the subject of count one, could actually fire live rounds. There was no dispute that that firearm was originally designed to fire blanks or gas cartridges only. However, the ballistics expert who examined it provided a report that was ambiguous as to whether or not, when he examined the firearm, it had been modified so as to permit the discharge of live rounds.

39 In the proceedings on sentence of Mr Truong, his Honour was provided with an agreed statement of facts to the effect that the Bruni pistol was capable of firing live rounds. As one would expect, his Honour made a finding in the remarks on sentence to that effect.

40 In subsequent proceedings on sentence pertaining to the co-offender Mr Nguyen, counsel for Mr Nguyen challenged the proposition that the Bruni pistol was capable of firing live rounds. The Crown conceded that it was not, and Mr Nguyen was accordingly sentenced upon that basis. So was, it seems, the offender Mr Le.

41 In light of those subsequent events, this part of the ground as originally formulated was to the effect that Mr Truong had been sentenced on a basis that was factually wrong. In response, senior counsel for the Crown sought to read an affidavit that was intended to establish the contrary proposition; in other words, that his Honour had not been misled, and the Bruni pistol was indeed capable of firing live rounds, and that the error was in truth in the proceedings on sentence of Mr Nguyen and Mr Le, who received an unearned benefit as a result. In the event, the affidavit was not read, but senior counsel for Mr Truong accepted that, in truth, his complaint was that Mr Truong had not received the benefit of the erroneous concession by the Crown that Mr Nguyen and Mr Le had received in their proceedings on sentence.

42 In short, the submission of senior counsel for Mr Truong was that, to borrow a well-known phrase used in discussing erroneous disparity of sentence, Mr Truong would experience a "justifiable sense of grievance" about the fact that his co-offenders were sentenced on a factually erroneous basis that may have led them to receiving shorter sentences than they would otherwise have received, but that the error did not occur in his case.

Determination

43 This part of ground two can be disposed of shortly. It seems that Mr Nguyen and Mr Le received a benefit erroneously, initially founded on an ambiguous report of an expert. Of course there is no Crown appeal on that basis with regard to their sentences. But it is nevertheless regrettable that it could be that facts that were objectively incorrect played a role in them receiving a sentence less than they would have received if the facts had been correct.

44 Nothing can, or should, be done about the sentences imposed on Mr Nguyen and Mr Le. However, I reject without difficulty the proposition that that error, far from being corrected, should be extended by way of some reduction in the sentence of Mr Truong, in order to reflect the putative reduction that may have occurred in the sentences of Mr Nguyen and Mr Le. I do not accept that, far from correcting the error, this Court should knowingly replicate it, in circumstances where there is no dispute that the Bruni pistol was indeed capable of firing live rounds.

45 It follows that I would not uphold this part of ground two.

The second submission

46 Secondly, senior counsel for Mr Truong submitted that there had also been an erroneous finding of fact with regard to the Melior pistol. The background is that that firearm, when sold, was not in working order. The shear pin had been replaced with a bent piece of wire and the slide of that semi-automatic pistol was fractured. The ballistics expert made it clear in his report that that was the case. However, after the expert replaced the damaged mechanism, he found that the firearm could fire projectiles.

47 In the latter stage of the remarks on sentence, his Honour said:

"As I have noted, the handgun in count two, the Melior, was in fact inoperative. I infer that the defect was easily remediable given the sale was made in a criminal milieu and notions of Sellers Warranty and Fair Trading Act obligations are more likely to give way to swift revenge if a customer who is the prospective user of an illegal handgun feels aggrieved or cheated."

48 Senior counsel for Mr Truong submitted that that finding was erroneous. He sought to call in aid evidence given by the co-offender Mr Nguyen on a different day before a different Judge, but I consider that his Honour can hardly be criticised for not making findings of fact that take into account evidence that was not before his Honour.

49 In short, the complaints of senior counsel for Mr Truong as I understand them with regard to the Melior were first, that the agreed facts were incorrect to the extent that they may have suggested that, at the time of sale, the Melior was in working order; and, secondly, the finding of fact of his Honour that that inoperative firearm could be readily repaired was not reasonably open.

50 Senior counsel for the Crown emphasised the undeniable proposition that the Judge sentenced Mr Truong on the basis that the Melior was inoperative. She also emphasised that there was nothing in the evidence to suggest that Mr Truong had any belief that the Melior was not functional.

Determination

51 This part of ground two can be dealt with briefly as well. His Honour was perfectly aware that the Melior was inoperative at the time of sale, and referred to that fact explicitly in the remarks on sentence.

52 As for the ease with which its defects could be repaired, his Honour drew an inference that one would not dare to sell a seriously defective firearm for a substantial sum of money to a person whom one believed to be part of the criminal milieu unless any defect was readily corrected. That inference was reasonably open. So was the finding of fact that was founded upon it.

53 It follows that I would not uphold the second part of ground two.

Ground Three

"His Honour the learned sentencing judge misinterpreted the facts relating to the second matter on the Form 1, and incorrectly associated the ammunition supplied with either of the pistols the subject of the two substantive counts. This artificially increased the criminality involved in that count."

Background and submissions

54 It will be recalled that the second matter on the Form 1 was selling ammunition between 9 and 10 June 2010. In the remarks on sentence, his Honour said that the facts of that charge were as follows:

"In relation to the sell ammunition without licence offence, the second matter on the Form 1, the brief facts are that on the evening of 9 June, Mr Le met the offender in Silverwater where Le supplied ammunition for the pistol to Mr Truong, the offender. He drove to Mr Nguyen's place where he supplied that ammunition to Mr Nguyen. On 10 June, Mr Nguyen drove his vehicle to the Meadowbank wharf car park, met the relevant police officer and supplied three Smith and Wesson .38 calibre rounds to him. That was, monitored both physically and electronically."

55 Senior counsel for Mr Truong emphasises the phrase "for the pistol" in that extracted portion.

56 It will be recalled that the firearm that was sold on 7 June 2010 was the Bruni pistol, which is the subject matter of count one. It was not a weapon capable of firing .38 calibre ammunition. The Bruni pistol was only capable of firing .32 calibre ammunition.

57 In contrast to the extract, in the latter part of the remarks on sentence, when assessing the objective gravity of the offences, his Honour said "[n]ext, the weapons were supplied but not with ammunition. That is a matter which bears upon the issue."

58 Senior counsel for Mr Truong submitted that his Honour must have taken into account the incorrect proposition that the .38 calibre rounds could be used in the Bruni pistol as a matter of aggravation. He submitted that that would have led the second offence on the Form 1 to have wrongly inflated the sentence imposed for count two. In short he submitted that that sentence should be somewhat reduced in order to reflect the factual error that his Honour had made.

59 Senior counsel for the Crown noted that the portion of the remarks on sentence now complained of is derived verbatim from the facts to which Mr Truong agreed at first instance and that, in the circumstances, this Court should be slow to permit him to complain successfully about it now. She also invited attention to the latter extract from the remarks on sentence to which I have referred, and which stands for the opposite proposition. Finally, she submitted that his Honour made no connection between the offences contained in the counts with the offence in the Form 1 under consideration.

Determination

60 This ground can be disposed of shortly as well. Quite apart from the difficulties that confront an applicant who seeks to impugn findings of fact contained in remarks on sentence that are themselves directly based on facts to which he or she has agreed at first instance, I consider that it is neither here nor there whether the three .38 calibre rounds could be used in the Bruni pistol itself. The fact is that they could be used in countless handguns that are circulating illegally in the community. To my mind, it matters not whether that ammunition could be used in the particular handgun in the supply of which Mr Truong had played a role, or some other handgun. Furthermore, there was no evidence upon which it could be inferred that his Honour took into account the proposition that that ammunition could be used in that pistol as an aggravating feature. If anything, the latter portion of the remarks on sentence is to the contrary.

61 In short, I would not uphold ground three.

Ground Four

"The effective sentence imposed was manifestly excessive."

62 Senior counsel for Mr Truong submitted that a combination of factors had resulted in a sentence that is manifestly excessive. First, there had been the overly prescriptive approach to the standard non-parole period, which, he submitted, would have led to a sentence more severe than would otherwise have been imposed. Secondly, he referred to the "factual errors" with regard to the serviceability of the two firearms, though by the end of the hearing I understood it to be accepted that the Bruni pistol was indeed serviceable and his Honour had understood that the Melior pistol was indeed inoperable at the time of sale. Thirdly, it was submitted that the mistake of fact about the three .38 calibre cartridges had played the same role. In short, it was submitted that all of those matters must have had an effect on his Honour, with the result that the sentence is manifestly excessive.

63 To the contrary, senior counsel for the Crown emphasised a number of matters. First, his Honour had imposed wholly concurrent sentences on the two counts, which extended a substantial degree of leniency to Mr Truong. Secondly, the second count needed to reflect the significant criminality encompassed by the offences on the Form 1. Thirdly, although the criminal record of Mr Truong was not of the greatest seriousness, it was a matter of aggravation that he had been subject to the bond for the driving offence when he committed these offences. Fourthly, special circumstances were found that reduced the operative non-parole period by one year. Fifthly, the offences were undoubtedly part of organised criminal activity. Sixthly, the maximum penalty of imprisonment for 20 years and the standard non-parole period of imprisonment for 10 years demonstrate that Parliament regards such offences as nothing other than grave. In short, she submitted that the sentences, whether viewed individually or as a whole, are not manifestly excessive.

Determination

64 This ground can be dealt with quickly and without detailed reference to other decisions of this Court, although nothing in R v Dunn [2003] NSWCCA 169, R v Goktas [2004] NSWCCA 296 or R v Howard [2004] NSWCCA 348 (to all of which his Honour referred in the remarks on sentence) is helpful to the submission of senior counsel for Mr Truong in support of this ground.

65 The fact is that Mr Truong was dealt with for two offences whereby handguns were illegally provided. It was only through good fortune that they were not disseminated into the community. Of course, Mr Truong had no idea that the ultimate purchaser was an undercover operative, and thought that the weapons and ammunition were being provided to a criminal. Not only that, Mr Truong engaged in a conspiracy to sell five further pistols. He also agreed to supply a Beretta pistol, although that transaction did not proceed. And he supplied, on at least two occasions, live ammunition. The motivation for the offences was a desire to profit, and the sums received by Mr Truong in return for his criminality were not insubstantial.

66 In short, Mr Truong engaged in the business of the professional supply of deadly weapons. Every single one of the firearms that Mr Truong supplied, or offered to supply, or conspired to supply, could have fallen into the hands of a hardened criminal, or a desperate drug addict, or a mentally disturbed person, but for the interposition of the police. In any of those cases, the outcome could have been fatal; indeed, catastrophic. Events in Australia and overseas demonstrate the ghastly consequences of illicit lethal weapons being at large in the community. Parliament has indicated by way of the maximum penalty and standard non-parole period that those who profit from trading in lethal weapons should receive condign punishment. Semi-automatic pistols are especially pernicious, not only because they are able to be readily concealed, but also because they are capable of firing projectiles in quick succession.

67 As for the structure of the sentences themselves, his Honour extended a noteworthy degree of leniency by making the two sentences wholly concurrent. Many judges at first instance would have made the sentence for count two partly cumulative upon the sentence for count one, at least to some degree.

68 The submission that the sentences, whether individually or in their total effect, are manifestly excessive cannot be sustained. It follows that I would not uphold ground four.

Section 6(3) of the Criminal Appeal Act

69 I have upheld ground one, and accordingly consideration needs to be given to re-sentence. Senior counsel for Mr Truong did not provide any fresh evidence upon which he relied as to the progress or otherwise of Mr Truong since the date of sentence.

70 Quite apart from being satisfied that the sentences are not manifestly excessive, I am also satisfied that no lesser sentence is warranted in law. There is no need for me to repeat what I have said about the seriousness of offences of trading in illicit semi-automatic weapons. Accordingly, although ground one has been upheld, I consider that that fact should have no effect in reducing either head sentence or either non-parole period.

Orders

71 I propose the following orders:

(1) Leave to appeal granted.

(2) Appeal dismissed.

R v Hoang Minh Le

Offences and Objective features

72 As indicated above, there is no application for leave to appeal against sentence by Mr Le. However, there is a Crown appeal against the sentences imposed upon Mr Le.

73 It is convenient to deal with the offences and their objective features together.

74 Mr Le was sentenced for six offences by Judge Sides QC in the District Court on 13 February 2012. I shall discuss them in the order in which they were discussed in the remarks on sentence. There were also four offences on a Form 1.

75 The first was selling the Bruni pistol on 7 June 2010. This was the same pistol discussed by me with regard to Mr Truong. It will be recalled that Mr Le supplied the pistol for $5,000 to Mr Truong, who supplied it to Mr Nguyen, who supplied it to the undercover operative. It was not clear from the evidence how much Mr Le had paid to obtain the pistol. As noted above, his Honour approached the matter (wrongly, as it turns out) on the basis that the Bruni pistol could not discharge live rounds, but merely an explosive irritant.

76 This offence was brought pursuant to s 51(1A) of the Firearms Act. It carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years.

77 On 9 June 2010, Mr Le supplied Mr Truong with the three .38 calibre rounds referred to by me above. Mr Truong supplied them to Mr Nguyen, who then supplied them to the undercover operative. This offence carried a maximum penalty of a $5,500 fine. It was dealt with on a Form 1 that was taken into account with regard to the Melior pistol offence discussed immediately below.

78 On 22 June 2010, Mr Le supplied Mr Truong with the Melior .25 calibre pistol. Mr Truong supplied it to Mr Nguyen, who supplied it to the undercover operative. This offence was brought pursuant to s 51(1A) of the Firearms Act. It carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of imprisonment for 10 years.

79 As I have said, this was the offence to which the Form 1 was attached. It will be recalled that that Melior pistol was not in working order when supplied to the undercover operative, but the ballistics officer made it so.

80 On the same day, Mr Le gave Mr Truong six .25 calibre rounds. Mr Truong supplied them to Mr Nguyen, who supplied them to the undercover operative. This offence was also contained on the Form 1. It also carried a $5,500 fine.

81 On 6 July 2010, Mr Le offered to sell the five firearms that he was proposing to obtain in Queensland to Mr Truong. It will be recalled that, on the return of Mr Le from Queensland, the police found three replica pistols in the boot of his car. Those events gave rise to a charge of offering to sell a pistol, pursuant to s 51(1A) of the Firearms Act. The maximum penalty of that offence is 20 years and there is a standard non-parole period of 10 years. That offence was taken into account on the Form 1 as well.

82 Mr Le was also sentenced for two offences of manufacturing a firearm. Pursuant to s 50A(2) of the Firearms Act, the maximum penalty was imprisonment for 20 years. Those charges were based upon some telephone intercepts, and also upon what Mr Le told police during an ERISP on 22 July 2010. He informed them that he had undertaken some work on the Bruni pistol, including replacing the handle and polishing the firearm. Although in the interview he denied modifying the barrel, it is recorded in the remarks on sentence that the Crown accepted the plea on the basis that it was indeed Mr Le who had done so. In relation to the Melior pistol, Mr Le admitted to the police that he had received that firearm in parts, and had put it together using new screws. He had also fixed the trigger and slide and modified the handle.

83 On 22 July 2010, police executed a search warrant at the home of Mr Le and arrested him. During that search they found an unassembled pistol in a shed. It was found to be an imitation pistol. As a result, Mr Le was dealt with for possessing a firearm. Pursuant to s 7(1) of the Firearms Act, that offence carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of imprisonment for 3 years.

84 Finally, during the execution of the search warrant, police located 42.34 grams of methylamphetamine. The street value of that drug was around $5,000. Indicia of supply were also located. The home of Mr Le was fortified and secured in such a way as to give rise to an inference that he was a drug dealer who feared for his safety and possessions.

85 Finally, during the search, the police located a taser. Mr Le claimed to have it for his own protection. Pursuant to s 7(1) of the Weapons Prohibition Act 1998, the offence of possessing that item carries a maximum penalty of 14 years with a standard non-parole period of 3 years. That offence was placed on the Form 1.

86 In short, Mr Le was sentenced for six substantive offences, and four offences were taken into account on a Form 1. Five of the substantive offences were to do with firearms, and one was an offence of supplying drugs. The Form 1 offences were to do with ammunition, firearms, and a taser.

Subjective features

87 Mr Le was 27 years old when he stood for sentence. He had been born in a refugee camp and came to Australia at the age of five. His upbringing had been marred by the behaviour of his father, who was a violent alcoholic. Despite the mistreatment he suffered at his father's hands, his death traumatised Mr Le, and induced in him a major depressive disorder. He used amphetamines as a means of self-medication.

88 Mr Le left school in Year 10, and had a number of unskilled jobs. His employment history was described by his Honour as "spasmodic". His mother was shown to be ill. His Honour did not extend leniency on that specific basis, although it was taken into account as part of the subjective background, and it was accepted that custody would be more burdensome for Mr Le as a result.

89 The learned sentencing Judge placed emphasis on the fact that Mr Le had no prior convictions, and had never been in custody before. While on bail for these offences, he had not offended further.

90 His Honour accepted that these were offences that constituted planned and organised criminal activity. However, his Honour also found that the motivation of the offences was financial stress rather than greed.

91 His Honour found that, to some degree at least, the two offences of manufacturing a firearm would not have been detected without the admissions made by Mr Le in his ERISP.

Sentences imposed

92 I shall briefly detail the sentences that were imposed. Again, annexed to this judgment is a diagram that seeks to explain the structure of the sentences imposed in a readily comprehensible form.

93 For the offence of possessing the imitation pistol, a head sentence of 1 year 6 months with a non-parole period of 9 months was imposed. Although the remarks on sentence refer to that sentence commencing on 16 February 2012, I infer that that is a typographical error, and that the sentence in truth commenced on 6 February 2012. So much is clear from the portion of the remarks on sentence immediately preceding the imposition of that sentence.

94 For the offence of manufacturing the Bruni pistol, a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That sentence commenced on 6 February 2012.

95 For the offence of manufacturing the Melior pistol, a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That sentence commenced on 6 May 2012.

96 For the offence of supplying methylamphetamine, a head sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 3 months was imposed. That sentence commenced on 6 November 2012.

97 For the offence of selling the Bruni pistol, a head sentence of 3 years 6 months with a non-parole period of 1 year 9 months was imposed. That sentence commences on 6 November 2013.

98 For the offence of selling the Melior pistol (which included the four matters on the Form 1), a head sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years was imposed. That sentence commences on 6 May 2015.

99 A number of aspects of the sentencing structure may be noted.

100 First, the total head sentence is imprisonment for 7 years 9 months, and the total non-parole period is imprisonment for 5 years 3 months.

101 Secondly, the sentence for the offence of possessing a firearm is wholly concurrent with one of the sentences for manufacturing a firearm. In turn, the period in custody referable to those two offences is 3 months. The period in custody referable to the second manufacture firearm sentence is 6 months. The period in custody referable to the drug supply sentence is 12 months. The period in custody referable to the sentence for selling the Bruni pistol is 18 months. The period in custody referable to the selling of the Melior pistol is 2 years.

102 Thirdly, the ratio between the head sentence and non-parole period of each sentence is in most cases 50 per cent, and in the case of the two offences of selling a firearm it is 50 per cent and 44 per cent.

103 Fourthly and finally, the ratio between the total non-parole period and total head sentence is a little under 68 per cent.

GROUNDS OF APPEAL OF LE

104 The Crown pressed a number of grounds of appeal. I shall deal with them in turn. The original ground of appeal was manifest inadequacy. That ground will be considered in conjunction with the final ground.

105 Ground one was abandoned.

Ground Two

"The Judge erred in his assessment of the seriousness of the offences of manufacturing and selling firearms [sequences 1, 3 and 12]."

106 In the remarks on sentence, his Honour said:

"[E]ach offence is towards the lower end of their respective range, but not at the bottom of their respective range."

It was submitted that that finding was an error on the part of his Honour. In particular it was submitted that, with regard to the manufacture of the Melior pistol, Mr Le had worked on it with an eye to making it operational (even though, at the time of sale, that was not in fact the case), and believed that he had achieved his goal. It was also noted that his Honour had accepted that the offences were premeditated and part of organised criminal activity.

107 It was also submitted by the Crown that that characterisation by his Honour could not apply to the offences that encompassed the criminality of selling two pistols.

108 Senior counsel for Mr Le submitted that that characterisation was open to his Honour, and this Court would be very slow to interfere with it.

109 Senior counsel for Mr Le referred to Mulato v R [2006] NSWCCA 282, in which Spigelman CJ said at [37]:

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."

110 Senior counsel for Mr Le submitted that, in short, there was no complaint about the characterisation as it applied to the work done on the Bruni pistol. As for the Melior pistol, it was objectively unable to operate when sold. As for the sale offences, on the facts as agreed between the parties, that pistol was capable of firing an irritant only, and not live rounds. Again, as for the Melior pistol, he emphasised that it was not functional when sold.

Determination

111 The offence of manufacturing a firearm in s 50A(2) is as follows:

"A person who manufactures a prohibited firearm or pistol is guilty of an offence under this subsection unless the person is authorised by a licence or permit to manufacture the prohibited firearm or pistol."

The definition of manufacture is contained in s 50A(5) and is as follows:

"In this section:

manufacture a firearm includes assemble a firearm from firearm parts."

The criminality encompassed by the offence can extend from a very sophisticated operation at the one end of the spectrum to a relatively minor adjustment to a pre-existing firearm at the other. Here, it is true that Mr Le received the Melior pistol in parts and assembled it. He also sought to fix the slide by the relatively primitive measure of inserting wire from a coat hanger. He also added a piece of leather to the handle. But the simple fact is that that firearm when sold was not in working order.

112 As for the Bruni pistol, he had hardly built it from scratch.

113 As for the offences of selling the two pistols, on the facts placed before his Honour the Bruni pistol fired only irritants, and the Melior pistol when sold fired nothing.

114 Of course, minds may differ as to the objective characterisation of offences, both generally and in this particular case. But I am not persuaded that the characterisation provided by his Honour was not open to the evaluative judgment of his Honour.

115 It follows that I would not uphold ground two.

Ground Three

"The Judge erred in failing to have regard to the guidepost provided by the applicable standard non-parole periods for the offences of selling firearms [sequences 1 and 3]."

Background and submissions

116 Although this ground is expressed as a failure to have regard to the standard non-parole period for the offences of selling firearms, the written submissions were:

"the sentences imposed do not reflect that the Judge had due regard to it as a governing guidepost" [emphasis added]

117 The submission as I understand it was, in short, that although his Honour had indeed explicitly referred to the applicable standard non-parole period of 10 years with regard to those two offences, and the fact that the sentences were being imposed after the decision in Muldrock v The Queen, in truth the sentences actually imposed erroneously failed to give appropriate weight to the standard non-parole period.

118 Senior counsel for Mr Le submitted that the ground is really a submission in support of manifest inadequacy, in that submissions about whether due regard has been given to a factor in sentencing concede that some regard has been given, and require an evaluation of the sentence actually imposed in order to determine whether that regard was sufficient.

Determination

119 I respectfully agree with the submission of senior counsel for Mr Le. Such an approach is consistent with what I have said in the past, most particularly in Hanania v R [2012] NSWCCA 220 with the agreement of Hoeben JA and Johnson J.

120 It follows that I shall consider the submissions of senior counsel for the Crown about the relationship between the standard non-parole period for the offence of selling a pistol and the non-parole periods actually imposed when I come to consider the latter grounds.

121 I would not uphold ground three as a separate ground.

Ground Four

"The Judge erred in imposing individual sentences that were manifestly inadequate as to their term and non-parole period."

Background and submissions

122 The Crown submissions in support of this ground had a number of aspects.

123 First, it was noted that, in many cases, the ratio between the head sentence and the non-parole period was 50 per cent or less.

124 Secondly, it was submitted that the shortness of the non-parole periods limited the degree to which accumulation could sensibly occur.

125 Thirdly, senior counsel for the Crown focussed on the two offences of selling pistols. It will be recalled that the two offences of selling the pistols carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. And yet with regard to the selling of the Bruni pistol, a head sentence of 3 years 6 months with a non-parole period of only 1 year 9 months was imposed. With regard to the selling of the Melior pistol, a head sentence of 4 years 6 months with a non-parole period of only 2 years was imposed.

126 Fourthly, with regard to the manufacturing of the Melior pistol, it will be recalled that there was a maximum penalty of imprisonment for 20 years. And yet a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That was, it was submitted, indicative of error.

127 Senior counsel for Mr Le submitted that there was nothing erroneous about the head sentences or the non-parole periods. He submitted that the ratio between the individual non-parole periods and the head sentences of around 50 per cent was not only open to the discretion of his Honour, but also had to be considered in the context of the ratio between the total non-parole period and the total head sentence, which is 68 per cent. That is hardly a substantial reduction from the statutory ratio of 75 per cent.

128 Focusing on the three sentences that were the subject of particular attack by the Crown, he submitted that the manufacturing of the Melior pistol was in truth primitive, and resulted in a firearm that in any event could not fire live rounds. As for the selling of the two pistols, he submitted that the offences, although motivated by financial gain, were relatively unprofessional. They were committed by a young man of prior good character who had suffered an unsatisfactory background and sunk into depression upon the death of his father. In all of the circumstances, the sentences could not be said to be manifestly inadequate.

Determination

129 There is a degree of artificiality, with respect, in seeking to analyse the length of individual head sentences and non-parole periods within an overarching sentencing structure in order to demonstrate that one or more of them were manifestly inadequate. After all, if a sentence were longer, but maintained its position in the structure, it could well be that that would have no operative effect on the time that an offender is to spend in custody. By way of example, if the sentence for manufacturing the Melior pistol had been a head sentence of imprisonment for 3 years with a non-parole period of imprisonment for 2 years (as opposed to a head sentence of imprisonment for 2 years with a non-parole period of 1 year), it can be seen that, unless its position in the structure were also altered, that would have no effect whatsoever on the period in custody actually to be served by Mr Le. This Court should not concern itself with altering sentences to no practical effect, except in unusual circumstances.

130 Furthermore, there is a degree of artificiality in discussing the ratio between individual non-parole periods and individual head sentences within an overarching structure. Again, the operative ratio that determines how long Mr Le must spend in custody and how long he may spend on parole is that between the total non-parole period and the total head sentence. As I have indicated, the reduction in the total non-parole period on the basis of special circumstances was in truth quite small.

131 In discussing the submission on behalf of Mr Truong that the sentences imposed upon him were manifestly excessive, I have emphasised the seriousness of these kinds of offences. This Court has done so on many occasions in the past: see Cunningham v R [2005] NSWCCA 416 at [22] - [23] and R v Howard at [65].

132 On the other hand, it was appropriate for the lack of prior or subsequent criminality on the part of Mr Le to be reflected in the sentences to be imposed to a substantial degree.

133 Finally, it needs to be borne in mind that one of the major aims of the adoption of a sentencing structure that features both partial accumulation and partial concurrence with regard to a large number of offences, such as the one under consideration, is to avoid the imposition of a crushing sentence upon an offender.

134 Undertaking the analysis of individual sentences upon which this ground is founded, I consider it is true that the head sentences could be characterised as lenient. And it is also true that the ratios between the individual non-parole periods and the individual head sentences could be described as generous. But it is well known that neither of those characteristics of a sentence are sufficient to found a ground of manifest inadequacy. I am not satisfied that the latter characterisation can be applied to the individual sentences.

135 It follows that I would not uphold ground four.

Ground Five

"The Judge erred in failing to impose an appropriate overall sentence to reflect totality."

Background and submissions

136 This ground focussed in particular on the first four sentences in the structure.

137 It can be seen that the offence of possessing a firearm is wholly concurrent with the offence of manufacturing the Bruni pistol. In turn, only three months in custody is wholly referable to the latter offence. Only six months in custody is referable to manufacturing the Melior pistol. And only 12 months in custody is referable to supplying methylamphetamine.

138 It was submitted by senior counsel for the Crown that the drug offence was completely separate from the firearm offences. It was also submitted that the manufacture of the Bruni pistol and the Melior pistol was separate and discrete from the sale of those firearms. The same submission was made with regard to the possession of the firearm at the home of Mr Le.

139 It was submitted that the lack of sufficient accumulation could not be divorced from the submission that the sentences themselves were too short. If the sentences had been longer, it was submitted, there could have been a greater degree of accumulation without the structure becoming distorted.

140 Senior counsel for the Mr Le submitted that this was not a complaint about an absence of partial accumulation on the part of the Crown. Rather, what was being complained about was the degree of accumulation. He submitted that such a ground will not easily attract favour, due to the long-standing and wide discretion accorded to sentencing judges in determining questions of whether to partially accumulate and, if so, to what degree. He re-emphasised the subjective features in submitting that it could not be said that his Honour fell into error with regard to the structure of the first four offences.

Determination

141 It is true that the sentence for the possession of a firearm in the shed of the home of Mr Le is wholly concurrent with another sentence. But I consider that that was well open to the discretion of his Honour. The firearm was an imitation pistol that was in pieces. It was open to his Honour to take the approach that that offence was connected with the overarching criminality encompassed in the other firearm offences.

142 It is also true that the offence of manufacturing the Bruni pistol led to a solely referable period in custody of only three months, and the offence of manufacturing the Melior pistol led to a wholly referable period in custody of only six months. I accept that that was lenient, in light of the maximum penalty of imprisonment of 20 years.

143 On the other hand, as I have indicated, the manufacturing of the Bruni pistol led to, on the facts as presented to his Honour, a firearm that fired only irritants. Manufacturing of the Melior pistol led to a firearm that could not fire anything. In each case, the manufacturing was unsophisticated, and, with regard to the attempted repair of the fractured slide of the Melior, could be said to be primitive.

144 Finally, I do not accept the submission that the manufacturing of the Bruni pistol and Melior pistol can be regarded as separate and discrete from the selling of those two firearms.

145 In short, I do not consider that the structure of the two manufacturing offences demonstrates error.

146 Finally, I accept that the drug offence was separate from the firearm offences. I also accept that the fact that only 12 months is solely referable to the sentence in custody is a lenient result. I am not satisfied that such an operative position in the structure was not open to the discretion of his Honour and demonstrates error.

147 It follows that I would not uphold ground five.

Ground Six

"The sentence is manifestly inadequate."

Background and submissions

148 This was the ground originally notified by the Crown. It calls for consideration of the total head sentence and the total non-parole period, though of course consideration needs to be given to the sentences that go to make up those total periods.

149 Particular focus was placed upon the sentences for the selling of the two pistols. It was submitted that, in the context of a standard non-parole period of imprisonment for 10 years, the non-parole period of 1 year 9 months and the non-parole period of 2 years were manifestly inadequate. Emphasis was placed upon the proposition that these were supplies of firearms for substantial sums of money, and accompanied by the provision of ammunition.

150 It was also submitted that the drug offence was hardly a trivial one. It was accompanied by indicia of supply and security measures that suggested that Mr Le was hardly a user who merely on occasions supplied to friends and acquaintances.

151 In short, even accepting that the subjective circumstances had a degree of force, it was submitted that the total sentence of imprisonment for 7 years 9 months with a total non-parole period of 5 years 3 months failed to reflect the criminality of Mr Le.

152 Because of the way in which the Crown's written submissions were structured, senior counsel for Mr Le did not provide separate written submissions about this ground. Nor was he called upon by this Court to address this ground orally.

Determination

153 Considering the offences of selling the two pistols, it is true that the non-parole periods are notably short, when one compares them to the standard non-parole periods. But it needs to be recalled that they took their place in an overarching sentencing structure that imposed a not insignificant total head sentence and total non-parole period on a young man who had admitted his crimes, pleaded guilty at an early stage, suffered an unsatisfactory upbringing, and who had not offended before or since these offences.

154 As for the overarching sentence structure that results in the total head sentence and the total non-parole period, reflection on the diagram leads to the conclusion that it was constructed by a most experienced sentencing Judge who took care to create a complex structure pertaining to six separate offences.

155 I accept that the sentences imposed for the offences of selling the pistols, and in particular the non-parole periods, are lenient. I also consider that the sentencing structure as a whole amply reflects the subjective features of this matter. But it is well established that such attributes of a sentence do not establish manifest inadequacy. Considering the total head sentence and the total non-parole period, I am not satisfied that the Crown has made good that characterisation.

156 It follows that I would not uphold ground six.

Orders

157 The order I propose in this matter is:

(1) Crown appeal dismissed.

Huy Nguyen v R; R v Huy Nguyen

Offences and objective features

158 By way of overview, Mr Nguyen was dealt with for a large number of serious drug and firearm offences. Seven were committed for sentence to the District Court. Six were contained upon a Form 1. Nine driving offences were contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986.

159 On 18 October 2011, in the District Court of New South Wales, Judge Johnstone imposed an aggregate head sentence of imprisonment for 9 years with an aggregate non-parole period of imprisonment for 6 years. Clearly enough, special circumstances were found that led to a variation of the statutory ratio to 67 per cent. His Honour also provided a number of indicative sentences, which I shall detail shortly.

160 I shall discuss each of the offences in the order in which his Honour dealt with them. I commence with the offences that were before his Honour for sentence. It is convenient to include a brief summary of the objective features of the offence as I do so.

161 Again, annexed to this judgment is a diagram that seeks to explain the structure of the sentences in a readily comprehensible form.

162 The first offence was that Mr Nguyen supplied methylamphetamine on three or more occasions between 26 March 2010 and 20 April 2010. Pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, that offence carried with it a maximum term of imprisonment of 20 years. It has no standard non-parole period. On five separate occasions, Mr Nguyen supplied an undercover operative with the drug. The total amount supplied was 14.14 grams. The amount of money received was $7,700. The purity of the drug was between 64 and 78 per cent.

163 The second charge was in identical terms, and related to the period between 28 April and 26 May 2010. Five separate supplies of the same drug were provided to the same undercover operative. The total amount of methylamphetamine was 13.42 grams, and the amount of money obtained was $7,200. The purity of the drug was between 64 and 78 per cent.

164 The third offence was supplying the Bruni pistol on 7 June 2010. As noted before, pursuant to s 51(1A) of the Firearms Act, that offence attracted a maximum penalty of imprisonment for 20 years, and a standard non-parole period of 10 years. It will be recalled that this pistol had been supplied by Mr Le to Mr Truong, who in turn supplied it to Mr Nguyen, who supplied it to the undercover operative. The sum of $9,500 was received. Mr Nguyen profited in the amount of $2,000 from this transaction.

165 The fourth offence was in identical terms. It occurred on 22 June 2010, and the subject matter was the Melior pistol. The purchase price was $8,000. Mr Nguyen had himself purchased the firearm for $7,500, leading to a profit of $500.

166 The fifth offence was knowingly dealing with the proceeds of crime. It was brought pursuant to s 193B(2) of the Crimes Act 1900. That offence carried a maximum penalty of imprisonment for 15 years with no standard non-parole period. It arose by way of the police executing a search warrant at the home of Mr Nguyen on 22 July 2010. There they found a large bundle of banknotes, amounting to $50,700 cash.

167 The sixth offence was supplying methylamphetamine. Pursuant to s 25(1) of the Drug Misuse and Trafficking Act, the offence attracts a maximum penalty of imprisonment for 15 years and no standard non-parole period. This offence was founded on the finding of 19.1 grams of methylamphetamine at the home of Mr Nguyen when the search warrant was executed on 22 July 2010. The drug had a purity of 75.5 per cent.

168 Finally, the seventh offence was one of possessing an unauthorised prohibited pistol. Pursuant to s 7(1) of the Firearms Act, that offence carries a maximum penalty of imprisonment for 14 years, and a standard non-parole period of imprisonment for 3 years. Again, to state matters succinctly, when the police executed the search warrant at the home of Mr Nguyen on 22 July 2010, they located a .32 calibre Colt pistol fitted with a magazine contained five rounds of ammunition. In other words, the pistol was loaded, although it is not clear whether there was a live round in the chamber.

169 The s 166 Certificate contained nine driving offences. Each offence carried a maximum penalty of imprisonment for 18 months. These offences arose from Mr Nguyen driving a motor vehicle, whilst disqualified, to meetings with an undercover police officer for the purposes of supplying prohibited drugs. There is no need for me to discuss them in detail in this judgment.

170 There was a Form 1 that was attached to the fourth offence, that is, the selling of the Melior pistol. Six offences were contained on the Form 1. The first was offering to sell a Beretta 9mm pistol. That offence carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of imprisonment for 10 years. The facts of the offer to sell the Beretta pistol were that on 16 May 2010 the offender offered to sell to an undercover police officer the firearm at a price of $10,000. However, the sale never eventuated.

171 The second offence on the Form 1 was selling ammunition without seeing the license or permit of the buyer. That offence carried a fine only. The selling of the ammunition was the provision of the three Smith and Wesson .38 calibre rounds on 10 June 2010 to the undercover operative.

172 The third offence on the Form 1 was an identical charge of selling ammunition. It was alleged that between 22 June 2010 and 22 July 2010, Mr Nguyen supplied six .25 calibre rounds to the undercover operative.

173 The fourth offence on the Form 1 was conspiring to sell five pistols. That offence was said to have taken place between 6 July 2010 and 22 July 2010. The subject matter of this offence was the five pistols that, it will be recalled, Mr Le proposed to obtain in Queensland. The maximum penalty of the common law offence of conspiracy is at large.

174 The fifth offence on the Form 1 was possessing ammunition without holding a license or permit to do so. The maximum penalty for this offence was a fine. Again, this charge arose from the execution of the search warrant on 22 July 2010, and related to the finding of a box containing 35 Winchester .32 calibre rounds.

175 Finally, the sixth offence on the Form 1 was selling a prohibited .22 calibre pistol without a license between 14 October 2009 and 16 October 2009. Pursuant to s 51(2A) of the Firearms Act, that offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years. To state the facts succinctly, Mr Nguyen sold a .22 calibre pistol fitted with a silencer to a man called Wijeyakumar for $3,500.

Subjective features

176 Mr Nguyen pleaded guilty to all offences. He received a discount of 25 per cent in return for doing so. That discount is impugned by neither party to this appeal. His Honour accepted that Mr Nguyen was remorseful.

177 Mr Nguyen was 28 years of age when he stood for sentence. Although as a child he suffered from Attention Deficit Hyperactivity Disorder, his background had generally been a happy one. Perhaps as a result of his condition, he left school in Year 10 and enrolled in TAFE, but did not complete any course there. He had "more or less" regular employment.

178 In his early twenties he was introduced to drugs by friends and quickly became addicted to crystal methylamphetamine and heroin. In 2009 he was admitted to a drug rehabilitation centre. After that he entered a methadone programme. At the time of the offences he was taking methadone, but also continuing to abuse heroin.

179 The criminal record of Mr Nguyen was lengthy. It featured convictions for possessing a prohibited drug, a number of property offences, and a large number of driving offences. It is true that, at the time of the commission of the offences under discussion, he was subject to a bond imposed in the Local Court for three charges of possessing a prohibited drug. On the other hand, it seems that Mr Nguyen had only received one custodial disposition in his life, namely a control order of 8 months with a non-parole period of a little over 1 month. Although he had been subject to a sentence of imprisonment by way of periodic detention for 3 months as a result of a shoplifting offence, it is noteworthy that he had never been sentenced to full-time imprisonment in an adult gaol before.

180 By the date of sentence, Mr Nguyen claimed to be drug free and to have been able to use his time in custody whilst bail refused to think more clearly about the course his life had taken. He gave evidence on the proceedings on sentence that all of the offences were motivated by a desperate desire to obtain money for drugs.

Sentences imposed

181 As noted above, his Honour adopted the procedure of imposing an aggregate sentence, pursuant to s 53A of the Crime (Sentencing Procedure) Act 1999. In doing so, his Honour provided indicative head sentences for each individual offence.

182 With regard to the first offence of ongoing supply, there was an indicative head sentence of imprisonment for 5 years. With regard to the second offence of ongoing supply, there was an indicative head sentence of imprisonment for 5 years. With regard to the third offence of selling the Bruni pistol, there was an indicative head sentence of imprisonment for 3 years. With regard to the fourth offence of selling the Melior pistol, there was an indicative head sentence of imprisonment for 5 years. With regard to the fifth offence of dealing with the proceeds of crime, there was an indicative head sentence of imprisonment for 2 years. With regard to the sixth offence of supplying methylamphetamine, based on the prohibited drug found at the home of Mr Nguyen, an indicative head sentence of imprisonment for 2 years was provided. Finally, with regard to the seventh offence of possessing the Colt pistol at his home, an indicative head sentence of imprisonment for 5 years was provided.

183 His Honour did not provide indicative non-parole periods with regard to the offences that carried standard non-parole periods. That founds a ground of appeal in the Crown appeal.

NGUYEN APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

184 Two grounds were pressed at the hearing of the appeal.

Ground Two

"His Honour erred in his assessment of the serviceability of the pistols which were the subject of the third and fourth sequences".

185 This ground focused upon findings of fact made by his Honour in the remarks on sentence about the operability of the Bruni and the Melior pistols.

Background and submissions regarding Bruni pistol

186 With regard to the Bruni pistol, the agreed statement of facts was to the effect that that weapon could never fire a live round. The solicitor then appearing for the Crown expressly conceded that, and informed his Honour that the information to the contrary previously provided to Judge Lakatos SC was incorrect.

187 However, in the remarks on sentence, his Honour said:

"Nevertheless, in this particular case, the sale in the Form 1 offence involved a serviceable weapon, and the degree to which the two other firearms sold were unserviceable was not major, and they were both readily capable of being made operable. One of them was fitted with a silencer."

188 It was submitted that, with regard to the Bruni pistol, that finding was not reasonably open on the evidence. As I have indicated, on the evidence before his Honour, the Bruni pistol was not capable of being made operable in the sense of firing live rounds.

189 With regard to the Bruni pistol, senior counsel for the Crown submitted that, even if there was an error in that finding of fact on the evidence, the Bruni pistol was capable of firing both gas and liquid product, and perhaps that could be more dangerous in some circumstances.

Determination regarding Bruni pistol

190 In a sense this ground is highly artificial, for a number of reasons. The first is that, as I have indicated, in the appeal of Mr Truong, it was accepted by both parties that in fact the agreed facts in the proceedings on sentence of Mr Nguyen were incorrect, and the Bruni pistol was indeed capable of firing live rounds. However, no concession to that effect was made by counsel for Mr Nguyen, and the ground was maintained. Furthermore, the Crown accepted that Mr Nguyen was entitled to have his sentence determined on the basis of the evidence placed before his Honour, even if that evidence was in truth erroneous.

191 The second artificial aspect of the submission is that no sentence was actually imposed for the selling of the Bruni pistol. An indicative head sentence of 3 years was provided, but in truth only one sentence was actually imposed: the aggregate head sentence of imprisonment for 9 years and the aggregate non-parole period of imprisonment for 6 years. In other words, even if the indicative head sentence of imprisonment for 3 years were reduced to reflect this finding of fact, the ground would only be efficacious if the aggregate head sentence were also reduced.

192 The third artificial aspect is that, on any analysis, the indicative head sentence of imprisonment for 3 years with regard to an offence that carried a maximum penalty of imprisonment for 20 years and, more importantly, a standard non-parole period of imprisonment for 10 years, must be characterised as markedly lenient.

193 In short, his Honour referred to the fact that Bruni pistol was not capable of discharging live rounds as at the date of its sale. It seems that, by way of a slip, his Honour referred to it as being "readily capable of being made operable". A markedly lenient indicative head sentence was provided for that offence. Should this Court, even if it accepts that an error of fact has been made (on the evidence before his Honour), uphold the appeal in the sense of reducing, even to a small degree, the aggregate head sentence and the aggregate non-parole period?

194 The answer to that question can be found in my discussion of the next ground of appeal of Mr Nguyen: namely, that the aggregate head sentence and aggregate non-parole period are manifestly excessive. It is also to be found in my discussion of the last ground of appeal in the Crown appeal regarding Mr Nguyen, namely that the aggregate head sentence and aggregate non-parole period are manifestly inadequate. It is also to be found in my discussion of the submission by Mr Truong that the total sentence imposed upon him was manifestly excessive.

195 It suffices to say at this stage, that I consider that an error of fact has been established. And I am prepared to accept that the potential serviceability of the Bruni pistol could have been a material fact that was given some weight by his Honour in setting the aggregate head sentence and the aggregate non-parole period. In other words, I am prepared to proceed on the basis that the error has some materiality. I therefore uphold this part of ground two. But it is convenient to move immediately to s 6(3) of the Criminal Appeal Act.

Section 6(3) with regard to the Bruni pistol error

196 The question is whether, error having been established with regard to the finding of fact that, on the evidence, the Bruni pistol was readily capable of being made operable, a lesser sentence is warranted in law.

197 This question can be disposed of quickly. It suffices to say that Mr Nguyen was heavily involved in the trafficking of firearms for money, and at the same time the supply of prohibited drugs for significant sums. In truth, there is only one question about quantum that arises with regard to the aggregate head sentence of 9 years and the aggregate non-parole period of 6 years: whether they are manifestly inadequate or very close to it.

198 I am affirmatively satisfied that, even if one accepts the possibility that the error with regard to the operability of the Bruni pistol is a material one, and had an effect on the sentence ultimately imposed, no lesser sentence is warranted in law than that actually imposed by his Honour.

Background and submissions regarding Melior pistol

199 The second question of fact that is said not have been reasonably open is the finding of his Honour that the Melior pistol was readily capable of being made operable.

200 In the statement of facts at [93], it was said of the Melior pistol:

"At the time of examination the firearm was not in working order due to the sear pin being replaced with a bent piece of wire and the slide being fractured. ... A substitute sear pin and slide was used in the firearm and the firearm was successfully test fired."

201 Counsel for Mr Nguyen invited attention to the following passage of cross-examination of Mr Nguyen in the proceedings on sentence at T13.14:

"Q. No, but you couldn't say with any certainty that it would be easily able to be made working, would you agree with that?

A. Well if they can get the part for it and this and that, source the part, be worth more than the gun itself."

202 In short, counsel for Mr Nguyen submitted that the finding that the Melior pistol was readily capable of being made operable was not reasonably open. He submitted that one could infer that replacing the sear pin and fractured slide was not a simple or quick process.

203 The Crown submitted that the finding was reasonably open.

Determination

204 To the passage in cross-examination relied upon by counsel for Mr Nguyen may be added the following:

"Q. But you don't have any knowledge to know whether it could easily be fixed or not do you?

A. No because I'm not a technician, I'm not a gun technician."

205 The ballistics report simply stated that replacing the fractured slide and the sear pin permitted the gun to operate. There was no evidence before his Honour whether that was a lengthy and complicated operation or a simple one. The evidence of Mr Nguyen that such a task would cost more than the gun itself does not fit comfortably with his general assertion that he knew little or nothing of firearms, and in my opinion can be put to one side. I also consider that his Honour was entitled to infer that Mr Nguyen would be unlikely to dare to sell to a man whom he believed to be a criminal buyer in firearms an item that could not be repaired at all, or only after a great deal of time and trouble.

206 On the evidence before his Honour, I consider that it was reasonably open to find that the Melior could be readily made operable.

207 Accordingly, this part of ground two fails.

208 In summary with regard to ground two, I consider that a finding of fact about the Bruni pistol that was not reasonably open has been established. In that sense I would uphold ground two. However, the establishment of that error cannot lead to reduction in the aggregate sentence imposed.

Ground Three

"The sentence is manifestly excessive."

209 This ground can be determined without a detailed conspectus of the background (beyond that which I have already provided) and the submissions of the parties.

210 Mr Nguyen faced seven serious charges. A Form 1 contained two further serious charges and five less serious ones. He was obviously heavily involved in the selling of prohibited firearms, and also took part in the selling of prohibited drugs. Despite the assertions that he was a drug addict desperate for money in order to feed his addiction, it is noteworthy that he had over $50,000 cash in his home. His criminal record was by no means unblemished. And yet he received an aggregate head sentence of 9 years and an aggregate non-parole period of 6 years.

211 In the circumstances, the only real question is whether such a sentence is manifestly inadequate. I respectfully reject as unsustainable the proposition that such a sentence is manifestly excessive. Ground three is not made out.

212 It follows that the appeal against sentence of Mr Nguyen should be dismissed.

CROWN APPEAL REGARDING NGUYEN

213 Five grounds of appeal were notified and relied upon at the hearing. I shall deal with each of them in turn.

Ground One

"The Judge erred in not indicating what non-parole periods he would have applied for offences 3, 4 and 7."

214 This ground can be disposed of quickly. It is quite true that his Honour failed to provide indicative non-parole periods with regard to the offences that attracted a standard non-parole period. That was contrary to s 54B(4A) of the Crimes (Sentencing Procedure) Act, which is as follows:

"When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate, for those offences to which a standard non-parole period applies, the standard non-parole period (or a longer or shorter non-parole period) that it would have set in accordance with subsections (2) and (3) for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence."

215 However, s 54B(5) is apposite:

"The failure of a court to comply with this section does not invalidate the sentence."

216 Furthermore, the transcript of the proceedings on sentence on 18 October 2011 reveals that the solicitor then appearing for the Crown did not assist his Honour with regard to the very issue about which complaint is now made in this Court.

217 Thirdly, setting non-parole periods for the indicative sentences would have no effect on the sentence imposed upon and to be served by Mr Nguyen.

218 Finally, it is to be recalled that it is the aggregate head sentence and aggregate non-parole period that can be the subject of appeal, not the indicative sentences: see R v Rae [2013] NSWCCA 9 at [32] - [34], PD v R [2012] NSWCCA 242 at [44] and R v Brown [2012] NSWCCA 199 at [17].

219 For all of those reasons, I would not uphold ground one.

Ground Two

"The Judge erred in failing to have regard to the guidepost provided by the applicable standard non-parole periods for offences 3 and 4."

220 This ground may be disposed of quickly as well. In the written submissions of the Crown, the assertion in the ground that his Honour failed to have regard to the standard non-parole periods for offences three and four elided into the proposition that his Honour failed to have "due regard" to the standard non-parole periods.

221 It was accepted that, in the remarks on sentence, his Honour referred to having regard to the standard non-parole periods for the third, fourth and seventh offences, and also explicitly referred to the then recent decision in Muldrock v The Queen. Indeed, just before sentence was pronounced, his Honour invited the parties to make any submissions they wished with regard to that very case.

222 In truth, as I understand this ground, it asserts that the indicative head sentences are not properly reflective of the standard non-parole periods for the offences in question. That asserted error has itself, it is submitted, infected the aggregate head sentence and aggregate non-parole period that can be the subject of appeal. It follows that I shall deal with this question as a particular of ground five.

223 I would not uphold ground two as a separate ground.

Ground Three

"The indicative sentences failed to reflect the findings of objective seriousness."

Background and submissions

224 In the remarks on sentence, his Honour described the drug and firearm offences as "objectively serious". A little later, with regard to the drug offences, his Honour said:

"I am satisfied that the drug offences involved trafficking to a substantial degree. This was not a street level operation. This offender was engaged in a sophisticated operation involving the regular supply of significant amounts of illegal drugs."

225 It was submitted that a review of the indicative head sentences demonstrates that they simply fail to reflect those characterisations of the objective seriousness of the offences. For example, it was submitted that it could not be the case that the selling of the Bruni pistol, which constituted the third offence, could properly have an indicative head sentence of imprisonment for 3 years, in the context of a 20 year maximum penalty and a 10 year standard non-parole period. Furthermore, the selling of the Melior pistol, which was reflected in the fourth offence, and which took into account the offences on the Form 1, two of which were serious, could not properly be visited with an indicative head sentence of imprisonment for 5 years. Again, with regard to the drug offences, it was noted that the two ongoing supplies had a maximum penalty of imprisonment for 20 years, and yet resulted in two indicative head sentences of imprisonment for 5 years.

226 Finally, the supply of methylamphetamine encompassed in the sixth offence, again a serious example of an offence that carries a maximum penalty of imprisonment for 15 years, could hardly be adequately reflected in an indicative head sentence of imprisonment for 2 years.

227 These submissions have a substantial degree of force. However, it must be remembered that the indicative head sentences cannot be the subject of an appeal to this Court. It is only the aggregate head sentence and aggregate non-parole period that can be the subject of an appeal. It follows that it is not a matter of this Court analysing each indicative sentence and determining whether it is erroneous. Rather, it is a matter of looking at the whole of the sentencing structure in order to determine whether the aggregate sentence can stand or not.

228 For that reason, I shall regard these submissions as a particular of ground five, and an explanation by the Crown of how it is the error asserted in ground five is said to have arisen. They will be taken into account when I come to consider ground five.

229 I would not uphold this ground as a separate ground.

Ground Four

"The Judge erred in his approach to accumulation."

230 The submissions in support of this ground are a detailed examination of the remarks his Honour made as to which offences would be approached with an eye to at least some accumulation, and which offences would be the subject of concurrence, whether complete or very substantial.

231 But it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences (though I appreciate that it is the submission of the Crown that many of these were erroneous as well), and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.

232 For those reasons, I shall approach ground four, again, as a particular of ground five. All of the submissions made by the Crown with regard to this ground will be taken into account when I turn to ground five.

233 It follows that I would not uphold ground four as a separate ground.

Ground Five

"The sentence is manifestly inadequate."

234 To recap, Mr Nguyen faced seven offences to which he had pleaded guilty in the Local Court. All of them were serious. Two of them had a standard non-parole period of imprisonment for 10 years. Contained on a Form 1 were two further serious offences, and a number of other offences.

235 With regard to the firearm offences, looked as a whole, the matter can be summarised as follows: on separate occasions, Mr Nguyen sold three pistols (the Bruni pistol, the Melior pistol, and a pistol with a silencer); he offered to sell a Beretta pistol; he conspired to sell five pistols; he possessed at his home a loaded Colt pistol; and he also sold and possessed ammunition.

236 Quite apart from that, he supplied methylamphetamine of high purity on a number of occasions and netted as a result $14,900. He also possessed for supply at his home a not insignificant amount of methylamphetamine.

237 To complete the picture, he had over $50,000 cash in his home.

238 Is it conceivable that an aggregate head sentence of imprisonment for 9 years and an aggregate non-parole period of imprisonment for 6 years adequately reflects the criminality of Mr Nguyen?

239 On the other hand, he pleaded guilty in the Local Court and received a 25 per cent discount. Two of the serious matters were contained on a Form 1. He was found to be remorseful. He was sentenced on the basis that one of the guns could not fire live rounds at all, and the other was in no state to do so when sold. His Honour approached the matter on the basis that Mr Nguyen was not a professional seller of prohibited drugs and prohibited firearms, but rather a desperate drug addict. His criminal record, although not unblemished, on analysis is not that serious, and could be interpreted as the typical record of a drug addict rather than a professional criminal. His prospects of rehabilitation were found to be good.

240 The starting point adopted by his Honour must mathematically have been an aggregate head sentence of imprisonment for 12 years with an aggregate non-parole period of imprisonment for 8 years. That, on any reckoning, is not an insubstantial sentence to begin with regarding a person whose previous criminality did not remotely approach that encompassed in the offences under consideration.

241 It can be said without the need for deep analysis that many of the indicative head sentences are lenient. It can also be said that, considering all of the criminality of Mr Nguyen, the aggregate head sentence and aggregate non-parole period are notably lenient. It can finally be said that, speaking for myself, I would have imposed a longer aggregate head sentence and a longer aggregate non-parole period on Mr Nguyen. However, it is well known that the establishment of all of those propositions does not of itself lead to a successful Crown appeal on the ground of manifest inadequacy.

242 I have given earnest consideration to this question. Ultimately, I have come to the view that the aggregate head sentence and the aggregate non-parole period are on the cusp of being manifestly inadequate. In the end, I have decided that the aggregate sentence was open to the discretion of his Honour. I consider that that is the case if his Honour was giving full weight to the subjective features, and approaching the matter mercifully, as of course his Honour was entitled to do.

243 It follows that, on the basis that the aggregate head sentence and the aggregate non-parole period just managed to come within the discretion available to his Honour, I would not uphold ground five.

Orders

244 I propose the following orders in the matter of Mr Nguyen:

(1) Leave to appeal granted to the applicant Mr Nguyen.

(2) Appeal dismissed.

(3) Crown appeal against sentence dismissed.

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Decision last updated: 25 February 2013