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Court of Criminal Appeal 4 September 2012

Thuong Nguyen v R

[2012] NSWCCA 184

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE IMPORTING MARKETABLE QUANTITY OF HEROIN WHETHER SENTENCE MANIFESTLY EXCESSIVE RELEVANCE TO PERSONAL DETERRENCE

Citation: Thuong Nguyen v R [2012] NSWCCA 184
Court: Court of Criminal Appeal, NSW
Date: 4 September 2012
Judge(s): Allsop P, Latham J, Davies J (Davies J delivering the principal judgment)

Background

The appellant, an Australian citizen who had come to Australia as a Vietnamese refugee, pleaded guilty in the Central Local Court to importing a marketable quantity of heroin. He had travelled from Sydney to Ho Chi Minh City and returned internally concealing 81 pellets of heroin, with the pure heroin content weighing 274.7 grams. Customs officers detected heroin on an ion scan of his luggage and wallet upon his arrival in Sydney.

During a formal police interview, the appellant admitted that he had engaged in the same conduct on two or three prior occasions and that he knew the pellets contained heroin. He also disclosed that he had been paid approximately $40,000 for the trip.

In March 2011, Judge Wells in the District Court sentenced the appellant to seven years imprisonment with a non-parole period of four years and two months. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in applying the sentencing range guidance from Director of Public Prosecutions v De La Rosa (2010) NSWCCA 194
  • Whether the sentencing judge erred in her treatment of the appellant's antecedent history, including his admissions of prior uncharged importations
  • Whether the 40% discount applied for the early guilty plea and assistance to authorities was inadequate
  • Whether the sentencing judge erred in her treatment of the appellant's mental illness as a mitigating factor

Decision

Davies J, with Allsop P and Latham J agreeing, dismissed each of the four sub-grounds raised by the appellant.

On the antecedents and uncharged conduct, the Court found no error in the sentencing judge's approach. The appellant's admissions of two or three prior importations were made during his assistance to authorities, and that context did not insulate them from being treated as relevant to personal deterrence. The sentencing judge was entitled to regard the admitted prior conduct as bearing on his degree of familiarity with the operation and his personal deterrence, and was not required to disregard it simply because it was volunteered in the course of giving assistance.

On the 40% discount, the Court was not persuaded that any error was disclosed. Comparisons with other cases on similar facts did not reveal that the discount was manifestly insufficient. On the mental illness ground, the Court accepted that the sentencing judge had carefully assessed the evidence, including hospital records taken shortly after arrest, the appellant's own account to the psychiatrist, and the content of his police interview. The sentencing judge's finding that the mental illness did not substantially affect his moral culpability at the time of the offence, or substantially diminish the relevance of general deterrence, was open on the evidence.

On the De La Rosa submission, the Court reiterated that De La Rosa is not a guideline judgment and should be used only for general guidance. The sentence was within the range of appropriate sentences having regard to the aggravating features: the appellant's prior trips, the level of planning, his criminal record including a trafficking offence, and the limited mitigating weight of his mental condition. It could not be said the sentence was obviously wrong or not open to the sentencing judge, and the appeal accordingly failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • De La Rosa is not a guideline judgment. The Court of Criminal Appeal confirmed, consistent with several recent decisions, that attempting to slot a case into one of the sentencing groups described in De La Rosa provides only limited assistance and does not substitute for an evaluative judgment on the individual facts.
  • Admissions of prior uncharged conduct made as part of assistance to authorities remain relevant to personal deterrence. The fact that such admissions were voluntarily made in the context of cooperation does not require a sentencing court to ignore them entirely.
  • A finding that mental illness did not substantially affect moral culpability at the time of the offence can properly limit the weight that mental illness receives in diminishing general deterrence considerations, provided that finding is supported by the evidence.
  • Manifestly excessive appeals face a high threshold. The Court applied the principle from House v The King that a sentence is only manifestly excessive if it is obviously wrong or outside the range of sentences reasonably open on the facts.
  • In dismissing the appeal, the Court reinforced that multiple aggravating factors, including repeated offending of the same type, planning, and a relevant criminal record, can collectively sustain a sentence that might otherwise appear near the upper boundary for a courier-level role.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (Cth)

Cases
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen [2000] HCA 54; (2000) 282 CLR 321
- Angus John Lindsay v R [2012] NSWCCA 124
- Kuti v R [2012] NSWCCA 43
- Remus Ritter v R [2012] NSWCCA 121