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District Court 4 March 2011

R v Trinh

[2011] NSWDC 140

Drugs
CRIMINAL LAW SENTENCE

Citation: R v Trinh [2011] NSWDC 140
Court: District Court of New South Wales
Date: 4 March 2011
Judge: Gibson DCJ

Background

The offender pleaded guilty to supplying a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge arose from the seizure of 698.9 grams of methylamphetamine (in the form of pink tablets) and, on a Form 1 charge, 8.6 grams of cocaine, following the execution of a search warrant at premises he was occupying on 5 May 2010.

The offender was 27 years old at the time of sentencing. He had a difficult upbringing, with parents who had fled Vietnam as refugees, a mother with a gambling problem, and a childhood largely spent in the care of his grandparents. Despite leaving school early, he completed a hairdressing apprenticeship and was in stable employment.

The offender explained that his involvement was a single transaction: he had been approached by an acquaintance from his drug-using circle and offered $5,000 to count and repackage the pills into smaller bags, after which they would be collected. His drug dependence and gambling debts had left him financially desperate. He had been in custody since the date of his arrest.

  • What was the appropriate sentence for supply of a commercial quantity of methylamphetamine, having regard to the offender's limited role and subjective circumstances?
  • How should the court characterise the objective seriousness of the offence, including the offender's role in the supply chain?
  • What weight should be given to the offender's guilty plea, remorse, prospects of rehabilitation, and personal background?
  • Were there special circumstances justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Gibson DCJ characterised the offending as falling toward the lower end of the objective seriousness scale, though not at the lowest level. The drug quantity (698.9 grams) was very high, but the offender's role was limited to packaging the pills for a few hours before returning them. He was responding to instructions from others higher in the supply chain, had no knowledge of the broader operation, earned a flat fee rather than a profit share, and had not initiated the arrangement himself.

The court accepted the offender's account of his circumstances, including his financial desperation arising from drug dependence and gambling, and found these relevant to his moral culpability. The early guilty plea, demonstrated remorse, good employment history, strong references, and positive prospects for rehabilitation all weighed in his favour. His prior criminal record, involving an unrelated goods-in-custody matter from when he was 18, did not disentitle him to leniency.

The low drug purity of the methylamphetamine tablets (1.5%) was considered, but the court held this was not a mitigating factor on the facts, given the offender's role was simply to package the pills without regard to their contents. The Form 1 cocaine charge operated to increase the sentence.

The court found special circumstances existed justifying a non-parole period below the standard ratio, reflecting the need for an extended period of supervised parole to support rehabilitation. An overall sentence of five years was imposed, with a non-parole period of two years and nine months.

Orders Made

  • The offender was convicted and sentenced to five years' imprisonment, with a non-parole period of two years and nine months.
  • The sentence was backdated to commence on 5 May 2010 (the date the offender was taken into custody), with the earliest parole eligibility date of 4 February 2013.
  • The prohibited drugs seized on 5 May 2010 were ordered to be destroyed.
  • The sequence 3 charge was remitted to the Local Court for mention on 18 March 2011 (s 166 certificate).

Key Takeaways

  • A conviction for supply of a commercial quantity of a prohibited drug does not mandate a uniform sentencing outcome; the offender's role in the supply chain remains a significant factor in assessing objective seriousness, even where the quantity is very high.
  • Where a defendant's involvement was limited to packaging drugs for a few hours at the direction of others, with no knowledge of the larger operation and no share in profits, that role may be characterised as toward the low end of the scale without being classified as minimal.
  • Low drug purity is not automatically a mitigating factor: the District Court held it carried no mitigating weight where the offender's task was simply to repackage the drugs irrespective of their contents.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may be found where an offender has good rehabilitation prospects and will benefit from an extended period of supervised parole, permitting a departure from the standard non-parole period ratio.
  • A Form 1 charge for supply of a separate prohibited drug operates to increase the head sentence imposed for the principal offence, consistent with the approach confirmed in The Attorney-General's Application No 1 of 2002 [2004] NSWCCA 303.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 47(2), 48(1) and Pt 4 Div 1A

Cases
- Lorraway v R [2010] NSWCCA 46
- Mulato v Regina [2006] NSWCCA 282
- R v Blair [2005] NSWCCA 78
- R v Clark, NSW Court of Criminal Appeal, unreported, 15 March 1990
- R v Clark (1997) A Crim R 585
- R v Colledge [2010] NSWCCA 302
- R v Shi [2004] NSWCCA 135
- Regina v Misiepo [2005] NSWCCA 405
- The Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2004] NSWCCA 303; (2004) NSWLR 305
- Vu v Regina [2006] NSWCCA 188