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Court of Criminal Appeal 25 June 2010

Nguyen v R

[2010] NSWCCA 132

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SENTENCE MANIFESTLY EXCESSIVE

Citation: Nguyen v R [2010] NSWCCA 132
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2010
Judge(s): McClellan CJ at CL, Simpson J, Barr AJ

Background

The applicant pleaded guilty to a single count of trafficking a marketable quantity of heroin (698.3 grams in total) contrary to s 302.3(1) of the Criminal Code Act 1995, which carries a maximum custodial penalty of 25 years. The offending occurred over approximately four months in 2006 to 2007, during which the applicant was an active organiser within a Sydney-to-Melbourne heroin distribution syndicate. His role included arranging couriers, discussing price and purity with buyers, and overseeing the syndicate's operations.

The applicant's personal history was marked by his arrival in Australia as a refugee as a young child, limited English literacy, early alcohol and drug use, problem gambling, and a psychological profile noting moderate depression and low self-esteem. His prior criminal record was minor, confined to traffic and minor administrative offences.

At first instance, Judge Freeman in the District Court sentenced the applicant to 13 years imprisonment with a non-parole period of 8 years and 6 months. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentence of 13 years (non-parole period of 8 years and 6 months) was manifestly excessive having regard to the applicant's role, personal circumstances, and comparable sentences.
  • Whether the sentencing judge erred in calculating the guilty plea discount by treating the consolidation of two charges into one as reducing the discount otherwise available under Cameron v The Queen.
  • Whether the sentencing range identified in R v Wong and Leung (1999) applied to this offence, and if not, what the appropriate range was.
  • Whether sentencing statistics confirmed that the sentence imposed fell outside the range ordinarily imposed for comparable offences.

Decision

Simpson J (with whom McClellan CJ at CL and Barr AJ agreed) found that the sentence was manifestly excessive and should be set aside.

On the guilty plea discount, the Court found that the sentencing judge erred in reducing the Cameron discount on the basis that the applicant had already received a benefit from the consolidation of two charges into one. Those are distinct considerations: the consolidation affected the overall charge, but a plea of guilty still attracts a separate discount reflecting the offender's willingness to facilitate the course of justice. Conflating the two was an error in principle.

The Court examined comparable decisions, including R v Pham [2005] NSWCCA 314, in which the offender's role was characterised as that of a low-level participant with a smaller quantity of heroin, and received a reduced sentence of 8 years (non-parole period of 4 years and 6 months) on appeal. The present applicant played a significantly higher organisational role than Pham, warranting a higher sentence. However, the sentencing statistics from the Judicial Commission of NSW were persuasive: the longest non-parole period in comparable cases (offenders with no prior convictions who had pleaded guilty) was 6 years, imposed in only four percent of cases. The original non-parole period of 8 years and 6 months was well outside the range ordinarily imposed.

Applying a starting point of 11 years (non-parole period of 7 years and 6 months) and a 15 percent Cameron discount, the Court arrived at a head sentence of approximately 9 years and a non-parole period of 6 years as the appropriate sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentences quashed.
  • In lieu of the quashed sentences, the applicant sentenced to imprisonment comprising a non-parole period of 6 years commencing 15 January 2007 and expiring 14 January 2013, with a balance of term of 3 years expiring 14 January 2016.

Key Takeaways

  • The Court of Criminal Appeal confirmed that consolidation of multiple charges into a single count does not reduce the guilty plea discount available under Cameron principles; the two considerations operate independently.
  • A sentence manifestly outside the range established by sentencing statistics can independently support a finding that it is manifestly excessive, even where the offender occupied a high organisational role within the syndicate.
  • Sentencing statistics from the Judicial Commission of NSW, while subject to well-known limitations, were treated as persuasive evidence that the original sentence fell well outside the range ordinarily imposed for comparable trafficking offences under the Criminal Code Act 1995.
  • The sentencing range established in R v Wong and Leung (1999) was held not to apply to this offence; courts were directed to consider decisions under the Criminal Code Act 1995 and, where relevant, under the Customs Act 1901 for comparable federal drug trafficking matters.
  • An offender's high-level organisational role within a distribution syndicate is a significant aggravating feature, but it does not displace the need to sentence within the range supported by comparable decisions and sentencing data.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 302.3(1)

Cases
- Cameron v The Queen [2002] HCA 6; 209 CLR 339
- Carroll v The Queen [2009] HCA 13
- House v The King [1936] HCA 40; 55 CLR 499
- R v Carroll; Carroll v R [2010] NSWCCA 55
- R v Pham [2005] NSWCCA 314
- R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- The Queen v Xin Liang [2009] VSCA 18
- Trandy v The Queen; Pham v The Queen; Nguyen v The Queen [2009] VSCA 321
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584