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Court of Criminal Appeal 12 May 2004

R v NGUYEN

[2004] NSWCCA 155

Drugs
CRIMINAL LAW CROWN APPEAL SUPPLY COCAINE ROLE OF RESPONDENT NO BASIS FOR INTERVENTION

Citation: R v Nguyen [2004] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 12 May 2004
Judge(s): Hodgson JA, Levine J, Howie J

Background

The respondent was convicted after a four-week trial in the Sydney District Court of supplying heroin in an amount not less than a large commercial quantity, and supplying cocaine in a lesser quantity. The offending occurred between 6 January and 6 February 2002, during which time the respondent stored drugs at his Fairfield premises, assisted in recompressing heroin, and acted as a runner for a drug syndicate. He was one of eight persons ultimately convicted in connection with the syndicate's operations.

The syndicate obtained heroin and cocaine in bulk block form, diluted and recompressed the drugs, and sold them to dealers. When the respondent was arrested, police found approximately 927 grams of heroin at his premises. The sentencing judge, Shillington DCJ in the District Court, described the respondent as a junior and relatively menial member of the syndicate, characterised by the Crown in its opening as the "general dogs'-body."

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912, arguing that the sentences imposed were inadequate.

  • Whether the sentencing judge erred in his discretionary approach to sentencing the respondent
  • Whether the sentences imposed were manifestly inadequate given the objective gravity of the offending and the respondent's role in the syndicate
  • Whether parity with co-offenders' sentences provided a basis for intervention

Decision

The Court of Criminal Appeal applied the two-hurdle test from R v Hernando (2002) 136 A Crim R 451, which requires the Crown to first identify an appellable error in the sentencing judge's discretionary decision, and then to negate any reason why the Court's residual discretion not to interfere should be exercised.

Having considered the sentencing judge's remarks against the factual material available, the Court was not persuaded that any error had been made in his Honour's approach. The sentencing judge had carefully characterised the respondent's role as a junior and relatively menial one, noting the limited period of involvement (one month), the degree of contrition shown, and the special circumstances arising from rehabilitation needs and the stress of protective custody.

The Court acknowledged that the sentences could well be regarded as lenient, and that a view was open that the sentences imposed on co-offenders were also lenient given the scale of the criminal enterprise. Nonetheless, the Crown failed to provide any basis for the Court to intervene, and the appeal was dismissed.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • A Crown appeal against sentence requires surmounting two hurdles: identifying an appellable error in the sentencing discretion, and negating any reason why the Court of Criminal Appeal's residual discretion not to interfere should be exercised.
  • In dismissing the appeal, the Court confirmed that a sentencing judge's characterisation of an offender's role within a drug syndicate, where supported by the evidence, will not easily be displaced on appeal.
  • The Court acknowledged the sentences were arguably lenient but held that leniency alone, without an identified error, is insufficient to justify appellate intervention.
  • Under s 25(2) of the Drugs Misuse and Trafficking Act 1985, supply of heroin in a large commercial quantity carries a maximum penalty of life imprisonment, underscoring the objective seriousness of such offending even where the offender occupies a junior role.
  • No error was established in the sentencing judge's finding of special circumstances based on rehabilitation needs, nor in his treatment of the brief period of involvement and the respondent's limited role in the broader syndicate.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25 (supply of prohibited drugs), s 32, s 33
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)

Cases
- R v Hernando (2002) 136 A Crim R 451
- R v MacDonnell [2002] NSWCCA 34