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Court of Criminal Appeal 8 December 2000

R v Nguyen

[2000] NSWCCA 547

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE HEROIN SUPPLY PARITY NO JUSTIFIABLE SENSE OF GRIEVANCE NO SPECIAL CIRCUMSTANCES

Citation: R v Nguyen [2000] NSWCCA 547
Court: NSW Court of Criminal Appeal
Date: 8 December 2000
Judge(s): Dowd J, Howie J

Background

The appellant was stopped by police on the Hume Highway while travelling from Melbourne to Sydney with his wife. A search of the hired car revealed over 700 grams of heroin at high purity (averaging 77.25 percent), with a street value of approximately $218,000. Police also found electronic scales and more than $13,000 in cash. Both the appellant and his wife were arrested and charged with supplying a commercial quantity of heroin under the Drug Misuse and Trafficking Act 1985.

The appellant pleaded guilty at an early opportunity and was sentenced in the District Court to six years imprisonment, comprising a minimum term of four and a half years and an additional term of eighteen months. His wife ran a trial, was convicted, and received a sentence structured with a shorter minimum term but a significantly longer additional term, reflecting special circumstances found in her case.

The appellant sought leave to appeal against the severity of his sentence, arguing primarily that the disparity between his sentence and his wife's gave rise to a justifiable sense of grievance.

  • Whether the disparity between the appellant's sentence and his wife's sentence was such that it created a justifiable sense of grievance warranting appellate intervention.
  • Whether the sentencing judge erred in finding that no special circumstances existed to justify enlarging the additional term of the appellant's sentence.

Decision

On the parity ground, the Court of Criminal Appeal found that the apparent disparity between the two sentences did not create a justifiable sense of grievance. The sentencing judge had found the appellant played a greater role in the offending than his wife, including a finding that the appellant had his own money invested in the heroin, placing him closer to the source of supply than a mere courier. That difference in culpability alone justified a different sentencing outcome.

The Court further noted that the wife's sentencing structure reflected significant special subjective circumstances that did not apply to the appellant. She had recently given birth and was separated from her newborn child, she was depressed, and she did not speak English, a factor the sentencing judge found would make imprisonment more onerous for her than for other inmates. The appellant, by contrast, had none of these features, and his early plea of guilty had already been reflected in a discount to his sentence. Accordingly, no justifiable sense of grievance arose.

On the special circumstances ground, the Court found no error in the sentencing judge's refusal to extend the additional term. The Court observed that a first period in custody does not automatically constitute a special circumstance; there must be something particular in the case to make it so. Nothing in the appellant's circumstances warranted that finding.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing disparity between co-offenders does not automatically generate a justifiable sense of grievance; the parity principle requires consideration of both differences in culpability and differences in subjective circumstances.
  • Where a co-offender's more favourable sentence reflects special subjective circumstances particular to that person (such as language barriers, separation from a newborn, and depression), the disparity does not constitute a basis for appellate intervention.
  • The Court of Criminal Appeal confirmed that the sentencing judge was entitled to find the appellant was not a mere courier, having concluded that he had his own financial investment in the drugs, placing him at a higher level of the supply chain.
  • No error was established in the refusal to find special circumstances. A first period of imprisonment, without more, is not automatically a special circumstance justifying an enlarged additional term.
  • In dismissing the appeal, the Court affirmed that an early guilty plea discount, properly applied, forms part of the overall assessment of sentence appropriateness and does not independently generate a parity claim against a co-offender who received different subjective considerations.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- Phelan (1993) 66 A Crim R 446
- R v Hauser (Unreported, NSWCCA, 11 December 1997, Gleeson CJ, Dunford and Barr JJ)
- R v Luong [2000] NSWCCA 139