Citation: Le Huynh v R [2006] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 29 March 2006
Judges: James J; Simpson J; Hall J
Background
The appellant pleaded guilty in the District Court to four charges arising from a police controlled operation in mid-2004: supplying heroin on a single occasion, supplying heroin on an ongoing basis (four separate sales to an undercover operative), possessing an unlicensed pistol, and having goods in custody (cash). He was arrested on 21 June 2004 and had remained in custody since that date.
The sentencing judge, Shillington DCJ, imposed eight years' imprisonment with a five-year non-parole period on each of the two drug supply charges, both running concurrently from the date of arrest. Additional fixed terms were imposed for the firearms and goods-in-custody offences. The total effective sentence was eight years.
The appellant was 23 at the time of sentencing, had a prior criminal record that included earlier drug and firearms convictions, and had been on parole when all of the present offences were committed. The sentencing judge characterised him as more than a street dealer, finding the pistol consistent with a significant role in the drug trade.
Legal Issues
- Whether the sentences imposed for the drug supply offences were manifestly excessive, having regard to the small quantities and low purity of heroin involved.
- Whether the sentencing judge applied the totality principle correctly when fixing the overall sentence across four offences.
- Whether special circumstances existed justifying a variation in the standard ratio between head sentence and non-parole period.
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the original sentences were manifestly excessive. James J (with whom Simpson J and Hall J agreed) concluded that, while the objective seriousness of the offences warranted significant terms, the very small quantities sold on each occasion and the low purity of the drug supplied were matters of some significance that the original sentences had insufficiently reflected.
On the ongoing supply offence under s 25A of the Drug Misuse and Trafficking Act, the court reduced the total sentence from eight years to six years. For the single supply offence under s 25(1), a fixed term of three years was substituted. The court acknowledged the evident purpose of s 25A in targeting repeated dealing, but held that quantity and purity remained relevant considerations when assessing the appropriate sentence within the range.
The court found special circumstances on the same grounds identified by the sentencing judge: the appellant's youth and his need for supervision upon release. The ratio between the total effective sentence and the non-parole period was maintained at approximately the same proportion as the original sentencing. The sentence for goods in custody (six months) was left unchanged.
Applying the principles in Pearce v The Queen regarding cumulation and concurrence, the court structured the new sentences in sequence to produce a total effective sentence of seven years, with non-parole periods and fixed terms totalling four years and four months.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence allowed; all sentences imposed by Shillington DCJ on 2 December 2004 quashed.
- In lieu, the appellant was re-sentenced as follows:
- Possessing a pistol without authorisation (Firearms Act s 7(1)): fixed term of 3 years commencing 21 June 2004.
- Supplying a prohibited drug (Drug Misuse and Trafficking Act s 25(1)): fixed term of 3 years commencing 21 December 2004.
- Supplying a prohibited drug on an ongoing basis (s 25A): non-parole period of 3 years 4 months commencing 21 June 2005, balance of term 2 years 8 months.
- Goods in custody: fixed term of 6 months commencing 21 June 2004.
- Earliest eligibility for parole: 20 October 2008.
- Total effective sentence: 7 years, with non-parole periods and fixed terms totalling 4 years 4 months.
Key Takeaways
- The Court of Criminal Appeal confirmed that the quantity and purity of a prohibited drug remain relevant sentencing considerations under s 25A of the Drug Misuse and Trafficking Act, even though that provision specifically targets ongoing supply and those factors are not the only matters to weigh.
- A sentence may be manifestly excessive where the sentencing judge does not adequately account for the small scale of each individual transaction, notwithstanding a characterisation of the offender as playing a more than minor role in the drug trade.
- Under the totality principle, sentences for multiple offences arising from the same general criminal activity must be structured so that the overall term is proportionate; concurrent sentences for the two drug charges reflected that they arose from the same course of conduct.
- Special circumstances justifying an adjusted non-parole ratio were found on the basis of the offender's youth and the identified need for supervised reintegration, consistent with how the sentencing judge had framed those factors at first instance.
- Cooperation with police, such as voluntarily disclosing the location of an unlicensed firearm, is a mitigating factor that the court treated as indicative of some contrition, though it did not operate to reduce the firearms sentence below a three-year fixed term.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Procedure Act (NSW)
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 25A(1)
- Firearms Act (NSW), s 7(1)
Cases
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 215 ALR 213
- Johnson v The Queen (2004) 205 ALR 346
- R v Henry (1999) 46 NSWLR 346
- R v Giang [2005] NSWCCA 387
- R v Huang; R v Lin [2001] NSWCCA 76
- R v Jordan [2002] NSWCCA 228
- R v Koklas [2003] NSWCCA 302
- R v Mucenski [2004] NSWCCA 299
- R v Siljanovski; R v Kostadinovic [2003] NSWCCA 38