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11
Court of Criminal Appeal 16 May 2002

Regina v Van Nam Nguyen

[2002] NSWCCA 183

Drugs

Citation: Regina v Van Nam Nguyen [2002] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 16 May 2002
Judge(s): Stein JA, Bergin J, Carruthers AJ

Background

The respondent pleaded guilty in the District Court to supplying not less than the commercial quantity (700g) of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 20 years imprisonment and a fine of $385,000. A further charge of supplying a commercial quantity of heroin (also 700g) was dealt with on a Form 1, meaning it was taken into account at sentencing without forming a separate conviction.

The facts arose from a joint investigation by the National Crime Authority, Queensland Police, and the Queensland Crime Commission into heroin distribution from Sydney to the Gold Coast. The respondent was identified as the Sydney-based supplier, operating through a network of intermediaries. He supplied two separate consignments of 700g of heroin: one intercepted at the Queensland border and one the subject of the principal charge.

District Court Judge Coorey imposed a total term of 5.5 years imprisonment with a non-parole period of 2.5 years, commencing 18 November 2000. The Crown appealed, contending that sentence was manifestly inadequate for the seriousness of the offending.

  • Whether the sentence of 5.5 years with a 2.5-year non-parole period was manifestly inadequate for commercial heroin supply at this scale and with this level of involvement
  • What weight should be given to the respondent's guilty plea, rehabilitation efforts, and personal circumstances in re-sentencing
  • Whether special circumstances existed to justify a departure from the statutory non-parole period
  • How the principle of double jeopardy, which applies on Crown appeals (meaning a discount is applied to account for the burden of being sentenced twice), should affect the re-sentence

Decision

The Court of Criminal Appeal, in reasons delivered by Bergin J (with Stein JA and Carruthers AJ agreeing), allowed the Crown appeal. The Court found that the original sentence was manifestly inadequate given the respondent's significant and major role in the supply of 700g of heroin on two separate occasions and the serious nature of commercial heroin trafficking.

In fixing the re-sentence, the Court identified 11 years as the appropriate starting point for the head sentence, having regard to both the principal offence and the Form 1 matter. Applying a full discount for the guilty plea, the Court reduced the head sentence to 8 years.

The Court also found special circumstances existed to justify reducing the non-parole period below the statutory norm of 6 years. It was the respondent's first drug and first custodial sentence, and the respondent had engaged meaningfully in rehabilitation, completing several courses in custody and working as an education clerk. The Court accepted that a longer period of post-release supervision would support his rehabilitation.

The double jeopardy principle was also applied in the respondent's favour. Because a Crown appeal subjects an offender to the burden of being sentenced a second time, the Court factored this into its determination of the appropriate penalty.

Orders Made

  • Appeal allowed
  • Sentence imposed by Judge Coorey set aside
  • Respondent re-sentenced to 8 years imprisonment, commencing 18 November 2000 and expiring 17 November 2008
  • Non-parole period of 5 years from 18 November 2000; respondent eligible for parole from 17 November 2005

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of 5.5 years for supplying two commercial quantities of heroin, where the offender played a significant and major organising role, was manifestly inadequate and warranted intervention on Crown appeal.
  • Where a respondent faces a Crown appeal, the double jeopardy principle operates to reduce the sentence that would otherwise be imposed on re-sentencing, acknowledging the additional burden of a second sentencing proceeding.
  • A full discount for a guilty plea applied even in serious commercial drug supply matters, reducing the head sentence from the 11-year starting point to 8 years.
  • Special circumstances justifying a reduced non-parole period were established on the basis of a first custodial sentence, a first drug offence, and demonstrated engagement with rehabilitation programs, despite the gravity of the underlying conduct.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985, supply of not less than the commercial quantity of heroin carries a maximum of 20 years imprisonment; the re-sentence of 8 years reflects the serious weight courts attach to commercial-scale supply even where mitigating factors are present.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2)(a)
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Barton (2001) 121 A Crim R 185
- Regina v Jermyn (1985) 2 NSWLR 194
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Nguyen [2000] NSWCCA 547
- Regina v O'Connor [2002] NSWCCA 156
- Regina v Simpson [2001] NSWCCA 534
- Regina v Thompson & Houlton [2000] NSWCCA 309