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Court of Criminal Appeal 30 November 2004

Regina v Heip Tan NGUYEN

[2004] NSWCCA 438

Drugs

Citation: Regina v Heip Tan Nguyen [2004] NSWCCA 438
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2004
Judge(s): Bell J (primary judgment), Hidden J, James J (agreeing)

Background

The applicant pleaded guilty in the Campbelltown District Court to three counts of supplying heroin contrary to the Drug Misuse and Trafficking Act 1985. Two offences arose from a single incident in May 2002, when police observed a street-level heroin deal near a shopping plaza and subsequently found approximately 8.3 grams of heroin in the applicant's vehicle, along with over $2,000 in cash. The applicant was charged and released on bail.

While on that bail, the applicant committed the third offence in May 2003. Police found him slumped over his steering wheel and discovered street deals of heroin on his person and in his vehicle, totalling 14.56 grams of heroin-containing substance, as well as a notebook consistent with a drug sales ledger. The applicant fled from police during the search, and in the course of his apprehension he struck an officer, grazing her shoulder.

Judge Sorby of the District Court sentenced the applicant to cumulative and concurrent terms totalling an effective non-parole period of approximately four and a half years, with a full sentence expiring in May 2008. The applicant sought leave to appeal on the basis that the sentences were manifestly excessive, focusing particularly on the length of the non-parole period for a first-time custodial sentence.

  • Whether the sentences imposed were manifestly excessive in all the circumstances, particularly for an offender serving his first term of imprisonment
  • Whether the effective non-parole period was disproportionately long given the applicant's personal circumstances, including heroin addiction
  • Whether the Judge properly applied the sentencing framework for offences committed prior to the 2002 standard minimum sentencing amendments

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Bell J, with whom Hidden J and James J agreed, found no error in the approach taken by the sentencing judge and rejected the contention that the sentences were manifestly excessive.

The Court acknowledged the applicant's heroin addiction and accepted the sentencing judge's characterisation of him as a user-dealer rather than a trafficker motivated purely by profit. Even on that more favourable basis, the Court noted that had the applicant been sentenced as a purely profit-driven trafficker, a heavier sentence would have been available. The distinction between a user-dealer and a greed-motivated trafficker operates as a mitigating consideration, but does not eliminate the need for a custodial sentence where supply is conducted to any substantial degree.

The Court identified several aggravating features that justified the sentence structure. The third offence was committed while the applicant was on bail for similar offences, which required specific reflection in the sentence. The quantity of heroin involved in the 2003 offence was itself significant. Both general deterrence and personal deterrence were relevant considerations. The maximum penalty for the offences was 15 years' imprisonment, and against that backdrop the sentences imposed were not excessive.

The applicant's primary submission at the hearing was not that the overall sentence was manifestly excessive, but rather that the effective non-parole period was too long for a first-time custodial offender. The Court was not persuaded by this narrower argument, finding that the combination of the bail circumstances, the quantities involved, and the deterrence considerations sufficiently justified the non-parole period imposed.

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that committing further supply offences while on bail for similar conduct is a significant aggravating factor requiring specific reflection in the sentence imposed.
  • A sentencing court's characterisation of an offender as a user-dealer, rather than a profit-motivated trafficker, operates as a mitigating consideration but does not automatically reduce a custodial term where supply is conducted to a substantial degree.
  • The distinction between categories of drug supplier (user-dealer versus trafficker for profit) is a matter of degree and circumstance; as the Court noted, breaking offenders into too many categories does not necessarily assist sentencing judges.
  • Where the applicable sentencing legislation differs between co-incident offences due to legislative amendments, the sentencing court must apply the law as it stood at the time each offence was committed, and this was correctly done without challenge in this case.
  • No error was established in the sentence structure where the judge used partial concurrence between sentences to give effect to the totality principle across multiple supply offences spanning more than a year.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A

Cases:
- R v Johnstone [2004] NSWCCA 307
- R v Markarian [2003] NSWCCA 8
- R v Shankley [2003] NSWCCA 253
- R v Stafrace (1997) 96 A Crim R
- R v Tipler [2000] NSWCCA 382
- Regina v John William Summerville (CCA, 9 September 1993, unreported)