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11
Court of Criminal Appeal 29 November 2006

R v NGUYEN

[2006] NSWCCA 369

Also reported as (2006) 166 A Crim R 124
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE IMPORTING PROHIBITED IMPORTS “EXCEPTIONAL” HARDSHIP

Citation: R v Nguyen [2006] NSWCCA 369
Court: New South Wales Court of Criminal Appeal
Date: 29 November 2006
Judge(s): James J, Hidden J, Hislop J

Background

The respondent was convicted after trial in the District Court of importing a trafficable quantity of methylamphetamine into Australia, contrary to s 233B of the Customs Act 1901 (Cth). Customs officers at Sydney Airport discovered 537.2 grams of pure methylamphetamine concealed within towels in her luggage, returned from Vietnam in April 2005. The wholesale value of the drug was approximately $90,000, with an estimated street value of $160,000.

At sentencing, District Court Judge Berman imposed a head sentence of four years with a non-parole period of two years. A significant feature of the sentencing proceedings was psychiatric evidence concerning the respondent's three young children, particularly the risk of long-term psychological harm to her two older boys if separated from her for a substantial period.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate given the gravity of the offence and the maximum penalty of 25 years imprisonment.

  • Whether the sentence of four years with a two-year non-parole period was manifestly inadequate for an offence of importing a trafficable quantity of methylamphetamine.
  • Whether hardship to third parties, including the respondent's children, is relevant to sentencing and, if so, under what circumstances.
  • How the "exceptional" hardship threshold applies in the context of s 16A(2)(p) of the Crimes Act 1914 (Cth), which requires a court to consider the probable effect of any sentence on third parties.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentence manifestly inadequate. James J (with Hidden J and Hislop J agreeing) concluded that, when weighed against the serious objective criminality of the offence and the relevant maximum penalty, the sentence imposed at first instance fell outside the range open to the sentencing judge.

On the question of third-party hardship, the Court accepted the established line of authority requiring such hardship to be "exceptional" before it can operate as a mitigating factor. The sentencing judge had acknowledged this threshold and had given weight to the psychiatrist's evidence about the risk of harm to the two older children. The Court recognised the case as distressing but found that the hardship to the children, while a relevant consideration, was not sufficient to bring the sentence within the acceptable range.

The Court also noted that the respondent's custody would be more than usually onerous given her separation from her children, and that the sentencing judge had correctly identified the countervailing factor that the respondent had committed the offence knowing she was a mother to young children and was pregnant at the time. Despite the sympathetic subjective circumstances, the original sentence was nonetheless found to be manifestly inadequate.

Applying the principle that a sentence imposed on Crown appeal will ordinarily be somewhat less than the sentence the Court considers should originally have been imposed, the Court resentenced the respondent to a head sentence of six years with a non-parole period of three years, both commencing 16 May 2006.

Orders Made

  • Crown appeal against the sentence imposed by Judge Berman on 4 August 2006 allowed.
  • Sentence imposed by Judge Berman quashed.
  • In lieu thereof, a head sentence of six years imposed, commencing 16 May 2006, with a non-parole period of three years.
  • The respondent to be eligible for release on parole on 15 May 2009, subject to compliance with parole conditions.

Key Takeaways

  • Hardship to third parties, including children of an offender, is a relevant sentencing consideration under s 16A(2)(p) of the Crimes Act 1914 (Cth), but only where that hardship is "exceptional."
  • Distressing subjective circumstances, including credible psychiatric evidence of risk to children, do not automatically render an otherwise manifestly inadequate sentence appropriate.
  • The Court of Criminal Appeal confirmed that where a Crown appeal is allowed and the offender is resentenced, the substituted sentence will generally be somewhat less than what the Court would have imposed at first instance.
  • A sentencing court may find that custody is more than usually onerous because of an offender's separation from dependants, while simultaneously noting that the offender knowingly assumed that risk by committing the offence.
  • Under s 233B of the Customs Act 1901 (Cth), with a maximum penalty of 25 years imprisonment and a $550,000 fine, the objective gravity of importing trafficable quantities of methylamphetamine will weigh heavily against mitigation through personal or family circumstances alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A(2)(p)
- Criminal Appeal Act 1912 (NSW), s 5D
- Customs Act 1901 (Cth), s 233B

Cases:
- Anna Le v Regina [2006] NSWCCA 136
- R v Bednarz [2000] NSWCCA 533
- R v Byrne (1998) 104 A Crim R 456
- R v Girard [2004] NSWCCA 170
- R v Sarca (unreported, Court of Criminal Appeal, 11 May 1993)
- R v Togias (2001) 127 A Crim R 23
- R v X [2004] NSWCCA 93