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10
Court of Criminal Appeal 21 November 2005

R v GIANG

[2005] NSWCCA 387

Drugs

Citation: R v Giang [2005] NSWCCA 387
Court: NSW Court of Criminal Appeal
Date: 21 November 2005
Judges: Sully J, Hulme J, Latham J

Background

The applicant was sentenced in the District Court to a non-parole period of one year and nine months, with a balance of term of one year and six months, for an offence under s 25A of the Drugs (Misuse and Trafficking) Act 1985 (NSW). That section targets repeat small-quantity drug dealers, making it an offence to supply a prohibited drug (other than cannabis) for reward on three or more separate occasions within 30 consecutive days. The maximum penalty is 20 years' imprisonment.

The offending involved the applicant supplying small foil packages of heroin, each containing between 0.14 and 0.2 grams, to undercover police officers on four occasions in July and August 2004. Each supply occurred for $50, arranged by telephone and conducted from a motor vehicle. Two related charges (goods in custody and possession of heroin) were taken into account on a Form 1.

The applicant sought leave to appeal his sentence, pointing primarily to what he described as a marked disparity between his sentence and those received by two co-offenders, one of whom received community service and a bond, and another who received periodic detention.

  • Whether the applicant's sentence was manifestly excessive for an offence under s 25A of the Drugs (Misuse and Trafficking) Act 1985.
  • Whether the sentences imposed on co-offenders gave rise to a justified sense of grievance on the part of the applicant, warranting appellate intervention on parity grounds.

Decision

On the question of manifest excess, the Court found the sentence was well within the sentencing judge's discretion and not manifestly excessive. Hulme J noted the legislative purpose of s 25A, which was enacted specifically to target dealers who structure their activities to avoid heavier drug trafficking charges by dealing only in small quantities. Strong general deterrence is a central sentencing consideration for this category of offence.

On the parity ground, the Court compared the applicant's circumstances with those of two co-offenders. One co-offender, Phan, had no criminal record, was found only to have been knowingly concerned with supply (a lesser role), and received community service and a bond. The applicant, by contrast, was the primary supplier and his situation was plainly different.

The more detailed comparison was with the other co-offender, Tran, who had committed equivalent offences under s 25A. Tran received periodic detention, which was characterised by the sentencing judge as falling within an exceptional category. However, Tran presented significantly more favourable circumstances: he had undergone a successful home detoxification program, received counselling, demonstrated genuine remorse, and had the Crown concede that periodic detention was within the proper range. The applicant, by contrast, had been uncooperative with police, had lied extensively, and the sentencing judge was unconvinced by his evidence or the depth of his remorse. Becoming drug-free in custody was also accorded less weight than Tran's comparable achievement in the community.

The Court noted that parity does not require identical outcomes where the personal circumstances of co-offenders differ materially. Where one offender falls on the favourable side of a borderline decision and another does not, that difference in outcome does not constitute a justified grievance. The appeal was dismissed, though Hulme J added a pointed reservation about whether Tran's sentence was itself one a sentencing judge was justified in imposing.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 25A of the Drugs (Misuse and Trafficking) Act 1985 exists to target structured small-quantity drug dealing, and strong general deterrence remains a prominent consideration when sentencing under that provision.
  • Parity in sentencing does not demand equal outcomes where co-offenders differ meaningfully in their personal circumstances, roles, remorse, and prospects for rehabilitation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an offender who falls on the unfavourable side of a borderline sentencing decision cannot invoke parity merely because a co-offender, with more favourable attributes, fell on the other side.
  • Achieving drug-free status while incarcerated carries less sentencing weight than achieving the same outcome in the wider community, even where full-time custody limits an offender's opportunities to undertake rehabilitation programs.
  • No error was established in the sentencing judge's assessment of the applicant's credibility and remorse, and the Court of Criminal Appeal treated those assessments as ones it was bound to accept absent demonstrated error.

Legislation and Cases Referenced

Legislation
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(3)

Cases
- Smiroldo (2000) 112 A Crim R 47
- R v Khalad [2001] NSWCCA 169
- R v Clark (Unreported, NSWCCA, 15 March 1990)