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Court of Criminal Appeal 27 November 2008

NGUYEN Giac v R

[2008] NSWCCA 280

Drugs

Citation: NGUYEN Giac v R [2008] NSWCCA 280
Court: New South Wales Court of Criminal Appeal
Date: 27 November 2008
Judge(s): McClellan CJ at CL, Hulme J, Hidden J

Background

The appellant was sentenced in the District Court in February 2007 following guilty pleas to two drug offences: supplying 0.43 grams of methylamphetamine, and the deemed supply of a commercial quantity of heroin weighing 294 grams. Both offences arose from events in August 2004, when police surveillance captured the appellant brokering a heroin deal. His role involved sourcing the heroin, arranging its testing, receiving approximately $85,000 from the purchaser, and passing $84,000 on to the ultimate supplier.

Taylor DCJ sentenced the appellant to a fixed term of 6 months for the methylamphetamine offence and 9 years imprisonment with a 6-year non-parole period for the heroin offence, both sentences running concurrently. The heroin offence carried a maximum of 20 years and a standard non-parole period of 10 years under the relevant legislation.

Significantly, the appellant had a prior conviction from the Melbourne County Court in 2003 for trafficking in a commercial quantity of heroin, for which he received a sentence of 4.5 years. The current offences were committed while he was still on parole for that earlier matter. He sought leave to appeal against the sentences imposed, arguing, among other things, that insufficient weight was given to his subjective circumstances and that the sentence on the heroin count was manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his refugee background, family situation, and limited education.
  • Whether the sentence for the commercial heroin supply was manifestly excessive.
  • Whether the sentencing judge correctly applied the discount for the guilty plea, given it was entered after arraignment and completion of a voir dire but before jury empanelment.
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending.
  • Whether the sentencing judge erred in finding special circumstances justifying a reduction in the non-parole period below the standard ratio.

Decision

Hulme J (with whom McClellan CJ at CL and Hidden J agreed) dismissed the appeal after granting leave. His Honour accepted that the appropriate characterisation of the offending placed it moderately below the middle range of objective seriousness, which aligned broadly with the sentencing judge's assessment.

On the question of errors in the sentencing judge's approach, Hulme J identified several aspects that appeared to have been favourable to the appellant rather than adverse to him. These included the discount applied for the guilty plea, the concurrency of the two sentences, and the finding of special circumstances. Hulme J also found the 6-year non-parole period was, if anything, lenient, given the appellant's criminal history and the fact that the offences were committed on parole.

Hidden J agreed with the orders but expressed caution about formally characterising those favourable aspects of the sentencing as legal errors, noting that the Crown had raised them only in response to the appeal grounds rather than as a cross-appeal. His Honour declined to express a concluded view on whether they constituted errors, as no such finding was necessary to dispose of the application.

All three judges agreed that, taking together the objective circumstances of the offending and the appellant's subjective features, including his prior conviction and parole status, no basis existed for the Court of Criminal Appeal to intervene. The sentence was severe but not outside the proper exercise of sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence may be severe without being manifestly excessive; the Court of Criminal Appeal confirmed that the overall sentence here fell within the proper exercise of sentencing discretion, particularly given the appellant's prior conviction for a similar offence and his parole status at the time of offending.
  • Where multiple aspects of a sentence appear to have favoured the offender (including the guilty plea discount, concurrent sentences, and a finding of special circumstances), those matters may counterbalance the grounds on which an offender seeks to challenge the outcome, even if the specific errors are not formally adjudicated.
  • Hidden J highlighted a procedural nuance: in an offender-initiated leave application, there is no occasion to determine whether aspects of the sentence that benefited the offender constituted errors, and it may be inappropriate to express concluded views on those matters without proper argument.
  • The appellant's role as a drug broker for a commercial heroin transaction, his use of code words and multiple SIM cards, his profit motive, and his prior trafficking conviction were all treated as relevant to objective and subjective seriousness.
  • Committing serious drug offences while on parole for a comparable prior offence is a significant aggravating factor that weighs heavily in the overall sentencing assessment.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act (NSW), ss 25(1) and 25(2)
- Crimes (Sentencing Procedure) Act (NSW), s 54A et seq (standard non-parole period provisions)

Cases
- R v Johnson [2004] NSWCCA 76
- R v Wickham [2004] NSWCCA 193
- Schaal (unreported, NSWSC, 8 September 1989, Wood J)