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District Court 3 July 2009

R v Than Phan, Kevin Nguyen, Duc Phan & Antonio Oliveri

[2009] NSWDC 181

Drugs
SENTENCE DRUG OFFENCES PSEUDOEPHEDRINE COMMONWEALTH AND STATE OFFENCES GAMBLING ADDICTION

Citation: R v Than Phan, Kevin Nguyen, Duc Phan & Antonio Oliveri [2009] NSWDC 181
Court: District Court of New South Wales
Date: 3 July 2009 (corrected 9 July 2009)
Judge(s): Williams DCJ

Background

Five men faced charges arising from the importation and supply of pseudoephedrine in commercial and large commercial quantities in early 2007. The operation involved concealing crushed cold and flu tablets containing pseudoephedrine within shipments of cosmetic chemicals sent to Australia, using a business front as cover. Two separate consignments arrived at Sydney Airport in March 2007.

One offender, the apparent principal, pleaded guilty to two counts of importing a commercial quantity of pseudoephedrine under the Commonwealth Criminal Code. The remaining four pleaded not guilty to knowingly taking part in the supply of a large commercial quantity of pseudoephedrine. After a lengthy trial, three of those four were convicted and one was acquitted.

The sentencing remarks addressed all four convicted men, each of whom faced different legislative frameworks, levels of involvement, and personal circumstances. The court noted the need for care in distinguishing what could be taken into account against each offender, given that the principal was not a trial participant and some trial evidence could not be used against him.

  • What sentences were appropriate for each offender given their differing roles in the importation and supply chain?
  • How should sentences imposed on subordinate offenders reflect those imposed on the principal, particularly where the principal pleaded guilty?
  • How does the standard non-parole period under the NSW Drug Misuse and Trafficking Act apply in this context, and how does it interact with Commonwealth sentencing principles?
  • What weight should be given to personal circumstances, including gambling addiction, as a mitigating factor?
  • How should the Commonwealth requirement for a single non-parole period be applied to the principal's two counts?

Decision

The court identified the principal offender as the organiser who arranged the importation through contacts in Vietnam, with a second offender occupying a closely associated role in coordinating the receipt of goods. The remaining two convicted offenders were found to have participated further down the supply chain, their precise roles less clearly defined, but their involvement established by the jury's verdict.

In setting sentences, the court applied the standard non-parole period of fifteen years (referrable to a notional twenty-year head sentence) as a guiding benchmark for the State offences. The court also had regard to the principle of sentencing relativity, noting that sentences for subordinate offenders must bear some proportionality to the sentence imposed on the principal, even where the principal pleaded guilty and received a reduction accordingly.

The court accepted that planning and sophistication were inherent features of offending at a commercial quantity level, rather than aggravating factors unique to these offenders. Personal circumstances, including gambling addiction raised by at least one offender, were considered but did not significantly diminish the objective seriousness of the offending. The principal's guilty plea was not entered at the earliest opportunity but was nonetheless treated as indicating a willingness to facilitate justice and attracted some reduction.

Following the original sentencing on 3 July 2009, the matter was relisted on 9 July 2009 to correct the principal's sentence. Commonwealth legislation required a single non-parole period across both counts rather than separate non-parole periods, and the correction was made without dispute.

Orders Made

  • The separate non-parole periods previously imposed on the principal offender were quashed.
  • A single non-parole period of 8 years was substituted, commencing 28 February 2011 and expiring 27 February 2019, with the total term expiring 27 February 2023.
  • Kevin Nguyen: minimum term of 8 years and additional term of 2.5 years, dating from 4 November 2008; eligible for parole 3 November 2016; total term expiring 3 May 2019.
  • Duc Phan: minimum term of 6 years and additional term of 2 years, dating from 6 November 2008; eligible for parole 5 November 2014; total term expiring 5 November 2016.
  • Antonio Oliveri: minimum term of 6 years and additional term of 2 years, dating from 1 November 2008; eligible for parole 31 October 2014; total term expiring 31 October 2016.

Key Takeaways

  • Sentencing relativity between co-offenders requires that sentences imposed on subordinate participants bear some proportionality to the sentence given to the principal, even where the principal entered a guilty plea and received a corresponding discount.
  • Under the NSW Drug Misuse and Trafficking Act, the standard non-parole period for large commercial quantity supply operates as a legislative guidepost, with the District Court referencing it against a notional twenty-year head sentence in calibrating appropriate penalties.
  • Planning and sophistication, while present in this operation, were treated as inherent characteristics of commercial-scale drug offending rather than as separately aggravating features.
  • Commonwealth sentencing law required a single non-parole period to be imposed across multiple counts for the principal offender; the original error in imposing separate non-parole periods was corrected by relisting shortly after the original sentence was handed down.
  • Differential legislative frameworks applied across the group: the principal was sentenced under the Commonwealth Criminal Code (maximum 25 years), while the trial offenders were sentenced under the NSW Drug Misuse and Trafficking Act (maximum life imprisonment), requiring separate analytical approaches for each offender's sentence.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 307.11(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Molesworth [1999] NSWCCA 43
- Petravic [1998] VSCA 95
- Henry (1999) 46 NSWLR 346
- Tobin (unreported, Berman DCJ, 22 November 2002)
- Gennaoui (unreported, Nicholson DCJ, 12 May 2006)
- Chapman [2001] NSWCCA 457
- Pham [2009] NSWCCA 25