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Court of Criminal Appeal 30 July 2007

Nguyen v Regina

[2007] NSWCCA 226

Drugs
SENTENCING IMPORTATIONS OF DRUGS VARIOUS PARTICIPANTS VARIOUS CHARGES OTHER PARTICIPANTS SENTENCED FIRST APPLICANT THEN SENTENCED

Citation: Nguyen v Regina [2007] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 30 July 2007
Judge(s): Giles JA; Latham J; Mathews AJ

Background

The applicant pleaded guilty to three charges of being knowingly concerned in the importation of prohibited drugs under the Customs Act 1901, and one charge of knowingly taking part in the supply of a large commercial quantity of MDMA (ecstasy) under the Drug Misuse and Trafficking Act 1985. The drug importations involved heroin and methylamphetamine sent by post from Hong Kong, heroin concealed in a Baileys Irish Cream bottle, and 150.478 kilograms of MDMA hidden inside a container of marble tiles imported from Malaysia. The applicant organised or participated in each of these schemes as part of a broader syndicate.

The District Court sentenced the applicant to an effective overall term of 24 years imprisonment, with a non-parole period of 18 years and 6 months. His co-offenders, including several syndicate members, had been sentenced earlier in the Supreme Court. Those co-offenders subsequently had their sentences reduced on appeal by the Court of Criminal Appeal.

The applicant then sought leave to appeal his own sentence, arguing that the reductions granted to his co-offenders created an unjustified disparity, that the sentencing judge had improperly taken into account uncharged conduct, and that the overall sentence was manifestly excessive.

  • Whether the applicant had a justifiable sense of grievance arising from disparity between his sentence and the reduced sentences imposed on his co-offenders after their successful appeals.
  • Whether the sentencing judge erred by taking into account uncharged or unproven criminal conduct.
  • Whether the overall sentence of 24 years was manifestly excessive in all the circumstances.

Decision

Parity (Ground 1): The Court rejected the parity argument. The co-offenders' sentences had been reduced on appeal specifically to bring them into parity with the applicant's sentence, not the other way around. Giles JA found that the applicant's complaint did not compare like with like: the applicant faced charges under a different statutory regime (the Drug Misuse and Trafficking Act), was subject to a maximum of life imprisonment, had a prior conviction for a similar offence in 1996 (which exposed him to life imprisonment for the Customs Act offences as well), and had played a more central and serious role in the MDMA importation than his co-offenders. No justified grievance arose from the comparison.

Uncharged conduct (Ground 2): The applicant challenged remarks by the sentencing judge concerning the scale of the postal importations, specifically a finding that packages had passed through the postal system undetected beyond those intercepted. The Court held there was no error. The sentencing judge was entitled to take into account the full circumstances of the charged conduct, including evidence that additional undetected packages formed part of the same criminal activity. The Court also addressed a submission that the judge had erred in treating the applicant's prior conviction as negating any mitigation from a lack of prior offending in this instance. The Court found the judge was doing no more than emphasising that the applicant could not be treated as a person with no prior history of drug trafficking.

Manifest excess (Ground 3): The Court found the sentences were well open to the sentencing judge. The failure to expressly quantify the discount applied for guilty pleas and assistance did not, without more, constitute an error. The judge had plainly taken both matters into account. In light of the findings on parity, the reduced sentences imposed on co-offenders did not support a conclusion that the applicant's sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity argument requires a genuine like-for-like comparison: where co-offenders' sentences were reduced on appeal specifically to match the applicant's sentence, no justified grievance arises from the comparison.
  • Differences in statutory charges, maximum penalties, criminal history, and the degree of participation in the offending are all relevant to whether apparent sentencing disparity is actually unjustified.
  • A sentencing court may have regard to the full factual circumstances of the charged conduct, including evidence of additional undetected criminal activity forming part of the same scheme, without necessarily committing an error in relation to uncharged conduct.
  • Failing to expressly quantify discounts for guilty pleas or assistance does not, without more, constitute a sentencing error, provided it is evident the sentencing judge took those matters into account.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a prior conviction for a like offence is a legitimate basis for a sentencing judge to decline to treat an offender as a person without a relevant criminal history.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- R v Ismunandar (2002) 136 A Crim R 206
- R v Li [2005] NSWCCA 154
- R v Nguyen, Pham, To and Vu [2004] NSWSC 144
- R v Nguyen, Pham, Vu and To (2005) 157 A Crim R 80
- Weininger v The Queen (2003) 212 CLR 629