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Court of Criminal Appeal 8 February 2006

Bao Nguyen v Regina

[2005] NSWCCA 448

Drugs

Citation: Bao Nguyen v Regina [2005] NSWCCA 448
Court: NSW Court of Criminal Appeal
Date: 8 February 2006
Judges: Mason P, Barr J, Hall J

Background

The appellant was one of eight workers arrested in January 2004 at a large-scale cannabis plantation at Mendooran, New South Wales. He had been recruited from the Vietnamese community in Cabramatta and worked on the property from October 2003, performing tasks including land clearing, planting, and constructing irrigation infrastructure. The operation involved over 30,000 plants with an estimated street value exceeding $50 million, described as the second-largest such operation ever detected in New South Wales.

The appellant pleaded guilty in the District Court to knowingly taking part in the cultivation of not less than the large commercial quantity of prohibited plants. On 5 January 2005, Solomon DCJ sentenced him to a total of nine years, comprising a five-year non-parole period and a four-year balance of term. The maximum penalty for the offence was twenty years.

Three co-offenders were subsequently sentenced by a different District Court judge. Their sentences were considerably more lenient than the appellant's, prompting the appeal on the ground that the appellant had a justifiable sense of grievance arising from the disparity.

  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and those later imposed on three co-offenders.
  • Whether the later sentences imposed on those co-offenders were so unduly lenient as to render them illegitimate comparators, such that the Court should decline to interfere with the appellant's sentence.
  • What the appropriate approach is when a second sentencing judge fails to treat the first judge's sentence as a proper benchmark.

Decision

Barr J (with whom Mason P and Hall J agreed) accepted that the sentence imposed on the appellant by Solomon DCJ was within the range properly open to his Honour. The difficulty arose from what followed. A different judge sentenced three co-offenders, Quang Trung Nguyen, Dinh Van Do, and Viet Quynh Truong, to significantly shorter terms. In doing so, that judge commenced from a lower starting point than Solomon DCJ had apparently used, despite acknowledging the earlier sentence, and did so on grounds Barr J found to be unsound or factually incorrect.

Barr J found no justification for the lower starting points adopted for the co-offenders. The second sentencing judge had, for instance, suggested that Solomon DCJ made no allowance for the appellant's youth, when his Honour had expressly done so. Barr J also noted that one co-offender's contrition was treated as reducing the starting point rather than simply informing the discount applied, which was an error of approach.

The Court accepted the Crown's submission that the second sentencing judge ought to have treated the appellant's sentence as a benchmark. The failure to do so was a miscarriage of justice. However, the Court then had to consider whether the co-offenders' sentences were so lenient as to be illegitimate comparators. Barr J concluded they were unduly lenient, but not to such a degree that the appellant's sense of grievance was rendered illegitimate. The fact that the Crown had not appealed those sentences was one, though not determinative, consideration in reaching that conclusion.

The Court reduced the appellant's sentence to reflect the appropriate comparator, substituting a non-parole period of three years and a balance of sentence of two years and six months, for a total of five years and six months.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • The original sentence quashed.
  • A substituted sentence imposed comprising a non-parole period of three years commencing 29 January 2004 and expiring 28 January 2007, and a balance of sentence of two years and six months expiring 28 July 2009.

Key Takeaways

  • Where co-offenders are sentenced by different judges, the second judge is required to treat the earlier sentence as a proper benchmark and to impose proportionate sentences accordingly. A failure to do so may constitute a miscarriage of justice.
  • A legitimate sense of grievance arising from sentencing disparity can ground a successful sentence appeal, even where the original sentence was itself within the proper range.
  • The Court of Criminal Appeal confirmed that a comparative sentence may be so unduly lenient as to lose its status as a legitimate reference point, such that the Court will decline to reduce the appellant's sentence by reference to it. However, the threshold for reaching that conclusion is high.
  • In assessing co-offenders' sentences, factors such as contrition are properly taken into account in the discount applied, not in determining the starting point or head sentence. Conflating those two steps constitutes an error.
  • The Court of Criminal Appeal reiterated that, where the administration of the sentencing court permits it, co-offenders ought to be sentenced by the same judge to minimise the risk of unjustifiable disparity.

Legislation and Cases Referenced

Cases:
- R v Tisalandis [1982] 2 NSWLR 430
- R v Diamond, Court of Criminal Appeal, NSW, 18 February 1993 (unreported)
- R v Steele, Court of Criminal Appeal, NSW, 17 April 1997 (unreported)

Legislation:
No specific legislation was cited in the text provided, though the offence related to cultivation of a large commercial quantity of prohibited plants (cannabis) under New South Wales law.