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District Court 19 August 2011

R v Binh Trong NGUYEN

[2011] NSWDC 120

Drugs
CRIMINAL LAW SENTENCE IMPORT MARKETABLE QUANTITY OF HEROIN INTERNAL CONCEALMENT OF HEROIN REFUGEE FROM VIETNAM DRUG ADDICT

Citation: R v Binh Trong NGUYEN [2011] NSWDC 120
Court: District Court of New South Wales
Date: 19 August 2011
Judge(s): Cogswell SC DCJ

Background

The offender, a Vietnamese-born Australian citizen, arrived at Sydney Airport on 25 September 2010. Customs officers suspected concealment, and a hospital CT scan confirmed he was carrying drug pellets internally. He later passed three pellets containing just under 90 grams of heroin with a street value of $66,000 to $77,000.

The offender admitted to Federal Police that he had arranged contact with heroin suppliers in Vietnam. He agreed to traffic the largest pellet to discharge a debt of approximately $5,000, with the two smaller pellets intended for his own use as a long-term heroin addict.

He faced a charge of importing a marketable quantity of a border controlled drug (heroin) under s 307.2(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 25 years imprisonment. He pleaded guilty at the first reasonable opportunity.

  • What was the appropriate head sentence for importing a marketable quantity of heroin by internal concealment?
  • What discount from the starting-point sentence was warranted for the guilty plea and other mitigating factors?
  • What non-parole period was appropriate?

Decision

Cogswell SC DCJ determined that the starting-point sentence was eight years imprisonment. His Honour then applied a 25 percent discount to account for the early guilty plea and other mitigating circumstances, reducing the sentence to six years.

The judge acknowledged several personal factors in the offender's background: his refugee history, his diagnosis of major depression and post-traumatic stress disorder, his hepatitis C, and his limited English. However, the weight given to these matters was moderated. The psychological diagnosis rested on a single relatively recent consultation, and unsworn background material attracted limited weight, though the court accepted it as within general knowledge.

His Honour treated the offender's role as significant. While he was not a principal in a large importation syndicate, his act of physically carrying the drugs into Australia was described as an important one. His prior criminal history, including convictions for supplying prohibited drugs and a breach of a suspended sentence, also counted against him. Full-time imprisonment was the only available sentencing option given the nature of the offence.

A non-parole period of four years was fixed, with the sentence backdated to commence on the date of arrest, 25 September 2010.

Orders Made

  • The offender was convicted of importing a marketable quantity of a border controlled drug (heroin) contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth).
  • Sentenced to six years imprisonment, commencing 25 September 2010 and expiring 24 September 2016.
  • Non-parole period of four years fixed, commencing 25 September 2010 and expiring 24 September 2014.
  • A document from exhibit A (tab 8) was removed and placed in a sealed envelope on the court file, not to be opened except by order of a District Court judge or a judge of higher jurisdiction.

Key Takeaways

  • A plea of guilty at the first reasonable opportunity, combined with other mitigating factors, attracted a 25 percent sentencing discount from a starting point of eight years for this category of heroin importation offence.
  • Internal concealment of drugs was treated as indicative of the offender's knowledge of the quantity being imported, a factor the court accepted as relevant to culpability.
  • Where a psychological diagnosis rests on a single recent consultation, the sentencing court may give it only limited weight and decline to treat the offender as a person with a significant mental disability.
  • A courier's role in an importation, while not equivalent to that of a principal organiser, was characterised as a significant contribution to bringing drugs into Australia rather than a minor or peripheral one.
  • Prior convictions for drug supply, including a breach of a suspended sentence, reduced the mitigatory value of personal background factors and informed the court's assessment of the need for specific deterrence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.2(1) (importing a marketable quantity of a border controlled drug; maximum penalty 25 years imprisonment)

Cases:
- No specific cases were cited in the judgment text. The sentencing court referred to comparative sentencing examples provided by the prosecution (exhibit A) and statistics published by the Judicial Commission of New South Wales.