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Court of Criminal Appeal 17 April 2009

Nguyen v R

[2009] NSWCCA 112

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE NO SPECIAL POINT OF PRINCIPLE

Citation: Nguyen v R [2009] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 17 April 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The appellant pleaded guilty in the District Court to supplying a prohibited drug, namely MDMA (ecstasy), by reason of the quantity found in his possession. This is known as "deemed supply": the law treats possession of at or above the indictable quantity as supply, even without direct evidence of an actual transaction. The appellant was found in possession of 27 ecstasy tablets weighing 6.35 grams, well above the indictable threshold of 1.25 grams, after a drug detection dog reacted to him in a city venue. A separate charge of goods in custody, relating to $550 cash, was also dealt with by the sentencing court.

King DCJ in the District Court rejected the appellant's evidence that the tablets were intended only for personal use shared between himself, his brother, and a cousin. His Honour found instead that the appellant had the tablets for the purpose of supply to the public in general, a conclusion supported in part by the appellant's earlier statement to police that the drugs were for a party attended by approximately 20 people. The appellant was sentenced to imprisonment with a non-parole period of six months, reflecting a finding of special circumstances that reduced the non-parole period to one-third of the total term.

The appellant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive and that the sentencing judge had failed to properly consider available alternatives to full-time custody.

  • Whether the sentencing judge's finding that the appellant intended to supply drugs "to the public in general" was open on the evidence.
  • Whether the sentence of imprisonment was manifestly excessive in all the circumstances.
  • Whether the sentencing judge failed to give sufficient consideration to available sentencing alternatives, including a suspended sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds. On the question of the factual finding, Grove J (with whom Howie J and Buddin J agreed) held that ample evidence supported the conclusion that the appellant intended to supply the tablets to the public in general. The quantity of drugs was a multiple of the indictable amount, the number of tablets was not insignificant, and the appellant's own statement to police about a party of approximately 20 people had never been satisfactorily contradicted.

On the second ground, the appellant argued that the sentencing judge's explicit focus on a suspended sentence demonstrated a failure to consider all available alternatives. The Court rejected this. King DCJ had expressly stated that he had considered all possible alternatives before concluding that no penalty other than imprisonment was appropriate under section 5 of the Crimes (Sentencing Procedure) Act 1999. The additional reference to a suspended sentence showed the judge had given particular attention to one option, but did not undermine the unequivocal statement that all alternatives had been considered.

The Court also noted that the appellant had benefited substantially from the finding of special circumstances, which resulted in a non-parole period equal to only one-third of the total sentence. The contention that the sentence was manifestly excessive was accordingly rejected.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's express statement that all available alternatives have been considered, made in compliance with section 5 of the Crimes (Sentencing Procedure) Act 1999, will not be undermined simply because the judge also specifically addresses and rejects one particular option such as a suspended sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the principle in R v Clarke (that custodial sentences are ordinarily appropriate for drug trafficking to a substantial degree) does not create an implicit obligation to impose custody; rather, it informs the exercise of the sentencing discretion.
  • Sufficient evidence existed to support a finding of intention to supply to the public in general where the appellant's own statement to police referred to a gathering of approximately 20 people, the quantity of drugs exceeded the indictable threshold by a significant margin, and the contradictory account given at sentencing was rejected as not credible.
  • Under the deemed supply provisions, possession of a prohibited drug at or above the indictable quantity grounds a charge of supply without proof of an actual transaction, and the intended distribution to even two or three individuals may constitute supply to others for sentencing purposes.
  • No special point of principle arose from the decision, and the Court confirmed no error had been established in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including section 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5 and 9
- Criminal Procedure Act 1986 (NSW), section 166

Cases
- R v Clarke, unreported, NSWCCA, 15 March 1990
- R v Depalo [2003] NSWCCA 80
- R v Gu [2006] NSWCCA 104