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85
Court of Criminal Appeal 22 October 2010

R v Nguyen; R v Pham

[2010] NSWCCA 238

Also reported as (2010) 205 A Crim R 106
Drugs
CRIMINAL LAW SENTENCE CROWN APPEALS ASSESSMENT OF ROLES OF OFFENDERS OFFENDERS RESENTENCED

Citation: R v Nguyen; R v Pham [2010] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 22 October 2010
Judges: Macfarlan JA, Johnson J, RA Hulme J

Background

Two co-offenders, who were cousins, were separately sentenced in the Sydney District Court for serious Commonwealth drug offences arising from events in May 2008. The first offender pleaded guilty to importing commercial quantities of both cocaine and methamphetamine, offences carrying a maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth). The second offender pleaded guilty to attempted possession of a commercial quantity of unlawfully imported cocaine, with a related methamphetamine offence taken into account on sentence under s 16BA of the Crimes Act 1914 (Cth).

The first offender was sentenced to an effective head sentence of 14 years and six months with a non-parole period of nine years and six months. The second offender received a term of 11 years with a non-parole period of seven years. Because the offenders were sentenced before different District Court judges on different days, the Crown brought separate appeals, which were heard together by the Court of Criminal Appeal.

The Crown contended that both sentences were manifestly inadequate, having regard to the objective gravity of the offences and the roles played by each offender.

  • Whether the District Court sentences were manifestly inadequate for offences of importing, or attempting to possess, commercial quantities of cocaine and methamphetamine under Commonwealth law
  • How to assess the objective gravity of each offence, including the quantities of drugs involved and the relative roles of the offenders
  • Whether any discretionary reasons existed to justify the Court declining to intervene, even if error were established
  • What resentencing was appropriate having regard to all relevant factors under s 16A of the Crimes Act 1914 (Cth), including subjective circumstances, guilty pleas, and the need for deterrence

Decision

The Court of Criminal Appeal found that both sentences were manifestly inadequate. Johnson J (with whom Macfarlan JA and RA Hulme J agreed) concluded that the sentencing judges had not given sufficient weight to the objective gravity of the offences, particularly given the commercial quantities involved, the maximum penalties of life imprisonment, and the significant roles each offender played in the drug importation scheme.

The Court found no discretionary reasons that would justify withholding intervention despite the error. The double jeopardy principle, which ordinarily weighs against increasing a sentence on Crown appeal, was taken into account but did not outweigh the need to correct the inadequacy of the original sentences.

On resentencing, the Court imposed substantially increased terms. For the first offender, consecutive 16-year terms were imposed for the cocaine and methamphetamine importations respectively, with an overall non-parole period of 12 years. The structure of the sentence reflected the greater relative quantity of methamphetamine compared to the commercial quantity threshold. For the second offender, a sentence of 15 years with a non-parole period of 10 years was substituted, representing approximately 66% of the full term.

The Court confirmed that the non-parole period in each case represented the minimum time each offender should serve in custody, having regard to the full range of sentencing purposes: objective seriousness, specific and general deterrence, denunciation, and the subjective circumstances of each individual.

Orders Made

Hai Van Nguyen:
- Crown appeal allowed
- Original sentences set aside
- Sentenced to 16 years' imprisonment for importing a commercial quantity of cocaine (commencing 19 May 2008, expiring 18 May 2024), taking into account schedule offences under s 16BA
- Sentenced to a further 16 years' imprisonment for importing a commercial quantity of methamphetamine (commencing 19 May 2010, expiring 18 May 2026)
- Non-parole period of 12 years fixed, commencing 19 May 2008 and expiring 18 May 2020

Phuong Thu Thi Pham:
- Crown appeal allowed
- Original sentence set aside
- Sentenced to 15 years' imprisonment (commencing 19 May 2008, expiring 18 May 2023), taking into account the schedule offence under s 16BA
- Non-parole period of 10 years fixed, commencing 19 May 2008 and expiring 18 May 2018

Key Takeaways

  • Both original District Court sentences were held to be manifestly inadequate for commercial quantity drug importation offences carrying life imprisonment as the maximum penalty, resulting in substantially increased sentences on Crown appeal.
  • The Court of Criminal Appeal confirmed that even where a Crown appeal succeeds, discretionary factors must be considered before the court intervenes; here, no such factors justified restraint.
  • The double jeopardy principle, which acknowledges the hardship to an offender of having a sentence increased on appeal, was weighed in the resentencing exercise but did not prevent the Court from imposing significantly heavier penalties.
  • Under s 16A of the Crimes Act 1914 (Cth), the sentencing exercise for Commonwealth offences requires consideration of objective seriousness, specific and general deterrence, denunciation, and the offender's individual circumstances, all of which informed the non-parole periods fixed by the Court.
  • Co-offenders sentenced separately before different judges on different occasions may nonetheless have their sentences reviewed together on appeal, where the offences arise from the same underlying criminal conduct.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.5(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Judiciary Act 1903 (Cth), s 78B

Key Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Jimmy v R [2010] NSWCCA 60; 240 FLR 27
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
- R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
- R v MA [2004] NSWCCA 92; 145 A Crim R 434
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Adams v The Queen [2008] HCA 15; 234 CLR 143
- R v Pham [2009] NSWDC 362