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Court of Criminal Appeal 26 February 2014

Nguyen v R

[2014] NSWCCA 16

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE SUPPLY OF DRUGS APPEAL DISMISSED LEAVE TO APPEAL SENTENCE REFUSED

Citation: Nguyen v R [2014] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 26 February 2014
Judges: Hoeben CJ at CL, Schmidt J, Barr AJ

Background

The appellant was convicted by jury of being knowingly concerned in the supply of not less than a large commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The conviction arose from a controlled police operation in which 240 kg of cocaine, concealed in imported pavers, had been substituted by police. The appellant was arrested at a McDonald's car park in Sydney after approaching an undercover operative and handing over a $5 note matching a serial number referenced in intercepted emails.

The central issue at trial was whether the appellant knowingly participated in the supply, or was an innocent agent used by his co-accused without the requisite knowledge. The appellant gave evidence that he accompanied his co-accused socially and had no idea the meeting involved drug trafficking. Taylor DCJ sentenced the appellant to 11 years imprisonment with a non-parole period of 7 years and 6 months. The maximum penalty for the offence was life imprisonment and the standard non-parole period was 15 years.

The appellant challenged both his conviction and his sentence before the Court of Criminal Appeal.

  • Whether the trial judge erred in failing to adequately put the defence case to the jury in the summing-up.
  • Whether the sentencing judge erred by giving the standard non-parole period determinative significance, contrary to the High Court's guidance in Muldrock v The Queen (2011) 244 CLR 120.

Decision

On the conviction ground, the Court found no error in the trial judge's summing-up. The defence case, including the appellant's claim of innocent presence and the submission that the undercover operative's evidence was fabricated, had been put before the jury. The Court was satisfied the summing-up adequately covered the substance of the defence.

On the sentence ground, the Court rejected the contention that the sentencing judge had treated the standard non-parole period as a determinative or dominant figure. Schmidt J noted that the judge's references to the maximum penalty, the standard non-parole period, and the objective seriousness of the offence were entirely consistent with the approach mandated by Muldrock. That approach treats the standard non-parole period as a legislative guideline and one of two recognised reference points, not as a tether or starting point for the sentencing exercise.

The Court also observed that the disparity between the appellant's sentence and that of his co-accused (who received a non-parole period of 9 years and 6 months after a 25% plea discount) in fact demonstrated that the sentencing judge had assessed the appellant's culpability as considerably lower. This outcome was inconsistent with any suggestion that the standard non-parole period had been applied mechanically. The Court further noted, citing Zreika v R, that sentencing appeals are not occasions for reformulating the case below or resiling from concessions made at the plea.

Orders Made

  • The conviction appeal is dismissed.
  • Leave to appeal the sentence is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's reference to the standard non-parole period alongside the maximum penalty and objective seriousness does not, without more, constitute a Muldrock error. The standard non-parole period functions as a legislative guideline, not a fixed reference point that distorts the sentencing exercise.
  • No error in summing up arises simply because the trial judge did not reproduce every element of the defence case, provided the substance of that case was conveyed to the jury.
  • A significant reduction in sentence compared to a co-offender who received a higher term (even after a 25% plea discount) can itself demonstrate that the sentencing judge properly assessed comparative culpability rather than defaulting to the standard non-parole period.
  • Sentencing appeals do not provide an opportunity to revisit or reformulate the case advanced at the sentencing hearing, particularly where no compelling material was overlooked and no miscarriage of justice is demonstrated.
  • In dismissing both grounds, the Court reinforced that the principles in Muldrock require contextual application: the standard non-parole period is one of two legislative guideposts and must be considered alongside all relevant circumstances.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Rules
- Criminal Procedure Act 1986 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Pham v R [2013] NSWCCA 217
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- ARS v R [2011] NSWCCA 266
- AS v R [2010] NSWCCA 218
- Butler v R [2012] NSWCCA 23
- Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
- R v Meher [2004] NSWCCA 355
- Wong v R [2009] NSWCCA 101