Citation: Nguyen (Dinh Them) v Regina [2006] NSWCCA 253
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2006
Judge(s): Beazley JA, Hulme J, Hislop J
Background
The applicant was convicted by jury of cultivating 30,051 cannabis plants, a large commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985. He was one of several Vietnamese farm labourers hired to work on a cannabis operation run on a leased property at Mendooran, New South Wales. Each labourer was to be paid approximately $100,000.
The applicant was sentenced in the District Court to a nine-year non-parole period with a three-year balance of sentence. The sentencing judge, Finnane DCJ, used the sentence imposed on a co-offender, Bao Nguyen, as his benchmark and selected a starting point of 12 years.
After the applicant was sentenced, Bao Nguyen successfully appealed his own sentence to the Court of Criminal Appeal. The Court of Criminal Appeal reduced Bao's sentence substantially, bringing it into conformity with the lighter sentences that Nicholson DCJ had imposed on other co-offenders. The applicant then sought leave to appeal on the basis that this reduction created a justifiable disparity between his sentence and those of his co-offenders.
Legal Issues
- Whether the reduction in Bao Nguyen's sentence on appeal created a legitimate sense of grievance in the applicant, sufficient to warrant intervention under the parity principle.
- What the appropriate starting point and sentence for the applicant should be, having regard to parity principles and the factors distinguishing him from his co-offenders.
Decision
Hislop J (with Beazley JA and Hulme J agreeing) held that allowing the applicant's sentence to stand, after Bao's sentence had been reduced to align with the lighter sentences imposed by Nicholson DCJ, would give the applicant a justifiable sense of grievance. Intervention to re-sentence was therefore appropriate.
The Court acknowledged that the applicant was distinguishable from Bao Nguyen in several material respects. The applicant was 47 years old, had two prior convictions for supplying a prohibited drug, showed no contrition or remorse, and offered no real prospect of rehabilitation. Bao, by contrast, was 22, had no prior criminal history, and had demonstrated contrition and steps toward rehabilitation. These factors justified imposing a higher sentence on the applicant than on Bao.
Taking the parity principles into account, and drawing comparisons with the case of Dinh Van Do (another co-offender with a prior conviction who received a starting point of 8.5 years), Hislop J assessed an appropriate starting point of 9 years for the applicant. No special circumstances were found that would warrant adjusting the statutory ratio between the non-parole period and the balance of sentence.
Hulme J, while agreeing with the result, expressed disquiet. In his view, the outcome produced a sentence significantly below what the applicant's criminality deserved. He felt constrained, however, to follow the Court's earlier approach in Bao Nguyen v R.
Orders Made
- Leave to appeal granted and the appeal allowed.
- The sentence imposed by Finnane DCJ was quashed.
- The applicant was re-sentenced to a non-parole period of 6 years and 9 months commencing 29 January 2004 and expiring 28 October 2010, with a balance of sentence of 2 years and 3 months commencing 29 October 2010 and expiring 28 January 2013.
Key Takeaways
- The parity principle requires that co-offenders not be left with a justifiable sense of grievance arising from marked sentencing disparity, even where the sentence under review was otherwise within the permissible range.
- Where a co-offender's sentence is reduced on appeal, and that reduction creates a material disparity with another co-offender's sentence, the latter may have grounds for a parity-based appeal, even if no error attended the original sentencing exercise.
- The test for whether a sense of grievance is legitimate is objective, not subjective, as confirmed by reference to R v Kelly.
- Individual factors such as age, criminal history, contrition, and role in the offence remain relevant to calibrating the extent of any parity-based adjustment; equal treatment does not mean identical sentences where offenders are meaningfully distinguishable.
- In dismissing the idea that a sentence must simply mirror a co-offender's outcome, the Court of Criminal Appeal confirmed that the benchmark sentence controls the ceiling of comparison, but individual aggravating or mitigating factors still operate within that framework.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2), 33(3)(b)
Cases
- Bao Nguyen v R [2005] NSWCCA 448
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996–1997) 189 CLR 295
- R v Kelly (2005) 155 A Crim R 499