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Court of Criminal Appeal 7 February 2007

Nguyen v Regina

[2007] NSWCCA 15

Drugs
CRIMINAL LAW SENTENCING PARITY RELEVANCE OF RECORD OF CO OFFENDER STANDARD NON

Citation: Nguyen v Regina [2007] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 7 February 2007
Judge(s): Adams J, Howie J, Price J

Background

The appellant pleaded guilty in the District Court to supplying heroin in an amount not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Police intercepted nearly 25,000 telephone calls during a strike force operation and identified the appellant as the principal supplier of approximately one kilogram of heroin to a group of distributors on the Central Coast over roughly three months in early 2003.

The distributors, a family unit of three people, purchased the heroin from the appellant at $250 per gram and on-supplied it from a Shortland address. The appellant was sentenced in the District Court to a total term of ten years imprisonment with a non-parole period of six years, commencing from the date of his arrest in May 2003.

The appellant sought leave to appeal on grounds that the sentencing judge erred in characterising his role, that a parity grievance arose from the more lenient sentence received by a co-offender, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in placing the appellant "at the very top of the scale" in terms of his role in the drug distribution hierarchy
  • Whether the appellant had a justifiable sense of grievance arising from disparity between his sentence and that imposed on a co-offender, John Herbert Scott
  • Whether the sentence of ten years total with a six-year non-parole period was manifestly excessive
  • How the standard non-parole period of ten years for this offence should have been applied by the sentencing judge

Decision

On the first ground, the Court rejected the argument that the appellant occupied no higher a position than the family distributors. The Court accepted that the appellant was the wholesale supplier at the top of the distribution chain. The family operated beneath him, purchasing heroin from him and on-distributing it. The sentencing judge's characterisation of the appellant's role as being at the upper end of the scale was not an error.

On the parity ground, the Court examined the circumstances of the co-offender Scott. Scott had a prior criminal record, while the appellant did not. However, the Court noted that Scott was a distributor operating below the appellant in the hierarchy, and his sentence reflected a lesser level of criminality. The Court found that the appellant had not demonstrated a justifiable sense of grievance of the kind recognised in Lowe v The Queen and Postiglione v The Queen. Any difference in outcome was explained by the differences in role, participation, and criminal history.

On manifest excess, the Court noted a procedural shortcoming: the sentencing judge had not referred to the standard non-parole period of ten years when sentencing, which the Court said he should have done. The Court observed that, had the judge expressly used the standard non-parole period as a reference point, a lengthier sentence might have resulted. Despite this omission, the Court found that the sentence actually imposed fell well within the appropriate range and was not manifestly excessive. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A supplier operating at the wholesale level, above a family distribution network, was properly characterised by the sentencing court as occupying the upper end of the hierarchy for the purposes of objective seriousness.
  • Parity principles require that an appellant demonstrate a justifiable sense of grievance that a reasonable person would recognise; differences in role within a drug enterprise and differences in prior criminal record are legitimate grounds for differential sentencing outcomes.
  • The Court of Criminal Appeal confirmed that sentencing judges must expressly engage with the standard non-parole period as a reference point when sentencing for offences to which one applies, following R v Way (2004) 60 NSWLR 168.
  • Failure to reference the standard non-parole period did not, in itself, produce a successful appeal where the sentence imposed was otherwise within the appropriate range.
  • Prior good character carries reduced weight in drug supply offences; the appellant's lack of prior convictions was noted but did not displace the gravity of his central role in a sustained commercial heroin distribution operation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A(2), 54B
- Crimes Act 1900 (NSW), s 527C(1)(a)

Cases:
- R v Way (2004) 60 NSWLR 168
- Lowe v The Queen (1985) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Olbrich (1999) 199 CLR 270
- R v AJP (2004) 150 A Crim R 575
- MLP v R [2006] NSWCCA 21
- R v Ilbay [2000] NSWCCA 251
- R v Kollas & Mitchell [2002] NSWCCA 491
- R v Kalache (2000) 111 A Crim R 152
- R v Ramos (2000) 112 A Crim R 339
- R v Leroy (1984) 2 NSWLR 441
- R v McNaughton [2006] NSWCCA 242
- R v Stankovic [2006] NSWCCA 229
- R v Lam [2006] NSWCCA 11
- Barta v R [2006] NSWCCA 6
- R v M.A.K, R v M.S.K [2006] NSWCCA 381