AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 6 October 2006

Truong v Regina

[2006] NSWCCA 318

Drugs
CRIMINAL LAW SENTENCING KNOWINGLY TAKE PART IN SUPPLY RELEVANCE OF AMOUNT OF DRUG SUPPLIED.

Citation: Truong v Regina [2006] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 6 October 2006
Judge(s): Tobias JA, Howie J, Rothman J

Background

The appellant pleaded guilty in the District Court to one count of knowingly taking part in the supply of heroin, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of 15 years imprisonment. The facts, as agreed, established that the appellant physically carried two packages of heroin to a meeting with undercover police operatives and handed them to a co-offender, who then passed them on. The packages contained approximately 56 grams of heroin in total.

District Court Judge Marien SC sentenced the appellant to a total term of two years and six months imprisonment, with a non-parole period of one year and ten months. The sentence was backdated to account for 15 days of pre-sentence custody. The appellant's two co-offenders, who faced multiple drug charges and had additional matters taken into account on a Form 1, each received total sentences of four years with two-year non-parole periods.

The appellant sought leave to appeal on two principal grounds: first, that the sentencing judge overstated his role in the offence; and second, that the judge placed undue weight on the quantity of heroin involved in determining the appropriate sentence.

  • Whether the sentencing judge erred by characterising the appellant's role in the offence as more significant than the agreed facts warranted
  • Whether the sentencing judge placed excessive weight on the quantity of heroin supplied when assessing the seriousness of the offence and the appropriate sentence
  • Whether the sentence was manifestly excessive, including in light of the sentences imposed on co-offenders

Decision

On the first ground, the Court accepted that the sentencing judge's description of the appellant's role had been somewhat overstated. The judge had described the appellant as the person who "brought" the heroin to the transaction, which arguably implied a greater degree of planning and initiative than the agreed facts supported. However, the Court found that this error did not materially infect the sentence ultimately imposed.

On the second ground, the Court considered the relevance of drug quantity to sentencing for the offence of knowingly taking part in supply. It confirmed that the quantity of drug involved is a relevant factor in assessing objective seriousness, but it is not the only or necessarily determinative factor. The Court noted the anomaly that arose from plea negotiations: the appellant's co-offenders faced charges that reflected larger quantities and multiple transactions, while the appellant was charged only in relation to the single supply occasion. The Court observed that the practical consequences of this kind of plea arrangement had not been adequately thought through by the parties at the time.

Turning to the question of parity with co-offenders, the Court concluded that the appellant's sentence was, if anything, favourable to him when the differences in the offending were considered. The co-offenders faced more serious charges across multiple transactions. The discount for the appellant's guilty plea was assessed at the lower end of the ten to twenty-five per cent range, which the Court considered appropriate given the timing of the plea. An older decision cited by the appellant, concerning a shorter sentence in arguably more sympathetic circumstances, did not persuade the Court that the present sentence was outside the available discretionary range. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The quantity of drug involved in a supply offence is a relevant sentencing consideration, but it is not determinative on its own and must be weighed alongside all other circumstances of the offending and the offender.
  • Where plea negotiations result in co-offenders being charged with different offences arising from the same criminal enterprise, the sentencing consequences of those differences should be understood and addressed by the parties before sentence is imposed.
  • In dismissing the appeal, the Court of Criminal Appeal found that an overstatement of an offender's role in the agreed facts did not necessarily constitute a vitiating error if the sentence imposed remained within the appropriate range.
  • Parity between co-offenders does not require identical sentences; it requires that differences in sentences be explicable by reference to differences in criminality, charges, and offending history.
  • A guilty plea discount assessed at the lower end of the ten to twenty-five per cent range will not be disturbed on appeal where the timing and circumstances of the plea justify that assessment.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- R v MacDonnell (2002) 128 A Crim R 44
- Wong v The Queen (2001) 107 CLR 584
- R v Chan [1999] NSWCCA 103
- R v Nguyen [2005] NSWCCA 362
- R v Bertoli (unreported, 27 May 1994, CCA)