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Court of Criminal Appeal 31 October 2003

REGINA v. TRUONG

[2003] NSWCCA 314

Drugs
CRIMINAL APPEAL SENTENCE OFFENCE OF ONGOING SUPPLY OF DRUGS

Citation: [2003] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 31 October 2003
Judges: Spigelman CJ, O'Keefe J, Greg James J

Background

The applicant pleaded guilty in the District Court at Campbelltown to one count of supplying prohibited drugs (heroin) on an ongoing basis for financial reward. The offence arose from three separate transactions in which the applicant sold small quantities of heroin to an undercover police officer in exchange for $50 each time. He was arrested on 21 June 2002 immediately after the third transaction.

Judge Sides DCJ sentenced the applicant to three and a half years imprisonment, with a non-parole period of two years. His Honour applied a 25% discount to the custodial sentence in recognition of the applicant's early guilty plea.

The applicant sought leave to appeal the sentence, arguing it was manifestly excessive and that the sentencing judge made errors in assessing his credibility and motivation for committing the offence.

  • Whether the sentencing judge erred in finding inconsistencies in the applicant's explanation for selling his business and his account of events leading to the offence
  • Whether the judge erred in taking an adverse view of the applicant's evidence about failing to sell his motor vehicle
  • Whether the judge erred in refusing additional leniency based on the applicant's stated motivation for committing the offence
  • Whether the judge erred in the methodology for calculating the head sentence before applying the early plea discount
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal rejected each of the applicant's grounds of appeal. Central to several grounds was the applicant's account of why he had sold his bakery business. He told the sentencing court he sold it to spend more time with his family after a decade of long hours. However, the pre-sentence report recorded his wife's account that the real reasons were his alcoholism and gambling, which had developed before the sale. The sentencing judge found the applicant's evidence before him was not consistent with what had been reported to the Probation and Parole Service, and the Court of Criminal Appeal held that this credibility assessment was squarely a matter for the primary judge.

The Court confirmed that inconsistencies between an offender's evidence at the sentencing hearing and what is recorded in a pre-sentence report are a legitimate basis for an adverse credibility finding. Those findings bore directly on whether the judge should have extended greater leniency by accepting the applicant's stated motivation.

On the question of manifest excess, Greg James J acknowledged the sentence was a severe one. However, having regard to the criminality involved and the subjective circumstances that were accepted in the applicant's favour, including his age, lack of prior record, and favourable rehabilitation prospects, the court was unable to conclude the sentence fell outside the range available to the sentencing judge. O'Keefe J agreed, finding the precondition under section 6(3) of the Criminal Appeal Act 1912 for substituting a different sentence had not been met.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Credibility assessments made by a sentencing judge, including findings based on inconsistencies between an offender's oral evidence and a pre-sentence report, are matters for the primary judge and will not readily be disturbed on appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to decline additional leniency where the offender's stated motivation is not accepted as credible.
  • A sentence may be acknowledged as severe without meeting the threshold of manifest excess; the Court of Criminal Appeal will not intervene unless the sentence falls outside the range reasonably available on the facts.
  • Under section 6(3) of the Criminal Appeal Act 1912, the power to quash a sentence and substitute another is conditional on the original sentence being one that should not have been passed in law; that threshold was not met here.
  • Positive subjective features, including an early guilty plea attracting a 25% discount, a favourable probation report, no prior criminal record, and mature age, did not in combination render the sentence manifestly excessive for an offence of ongoing supply of heroin for financial reward.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 6(3)

Cases cited: None cited in the judgment.