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District Court 28 May 2014

R v Bui and Tran

[2014] NSWDC 204

Drugs
CRIMINAL SUPPLIER, STANDARD NON PAROLE PERIODS, PARITY.

Citation: R v Bui and Tran [2014] NSWDC 204
Court: District Court of New South Wales
Date: 28 May 2014
Judge(s): S Norrish QC DCJ

Background

Two co-accused pleaded guilty to offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 involving the supply of heroin in amounts not less than the commercial quantity. The first offender, a man described as the primary supplier, pleaded guilty to a supply offence spanning July to August 2012. He also asked the court to take into account a further supply of 693.4 grams of heroin on a Form 1 (a mechanism under NSW law that allows additional offences to be considered at sentencing without a separate conviction). The second offender pleaded guilty to knowingly taking part in the supply on 8 August 2012, the day of the arrests.

The facts arose from an undercover police operation. A brother and sister negotiated with undercover officers to supply heroin sourced from the first offender. On 18 July 2012, two blocks of heroin totalling approximately 693 grams (purity around 66%) were supplied to undercover officers for $224,000. A further, larger transaction was arranged for 8 August 2012 at a factory unit in Botany, involving seven blocks of heroin weighing 2.449 kilograms. Both offenders travelled to the scene of that transaction but remained in a vehicle nearby. The Thais, who acted as intermediaries, were arrested inside the unit; the two offenders were arrested outside.

The guilty pleas were entered after arraignment and the partial conduct of a voir dire examination. Originally, the charges alleged supply of not less than a large commercial quantity, but the pleas were entered to the lesser commercial quantity charges. The court sentenced the two offenders together, with parity between co-offenders being a significant sentencing consideration.

  • What sentences were appropriate for each offender under s 25(2) of the Drug Misuse and Trafficking Act 1985, given the maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years?
  • How should the standard non-parole period be applied in light of Muldrock v R (2011) 244 CLR 120, which established that it operates as a guidepost rather than a starting point?
  • What discount should be applied for the guilty pleas, having regard to the circumstances in which they were entered (after arraignment and partial voir dire)?
  • How should parity operate between the two offenders, whose roles in the supply differed significantly?

Decision

His Honour applied the two-stage sentencing approach confirmed in Markarian v The Queen and treated the standard non-parole period as a legislative guidepost in line with Muldrock v R. The court assessed the objective seriousness of the offences, the subjective circumstances of each offender, and the need for general deterrence, which his Honour identified as prominent in drug supply cases of this kind.

The first offender was treated as the primary commercial supplier. His longer criminal history, including a prior supply conviction and a suspended sentence for firearm possession, weighed against him. His Honour accepted, however, that there were subjective matters in his favour. A guilty plea discount of 15% was applied, consistent with the approach taken in Morton v R [2014] NSWCCA 8, where a similar discount was upheld following plea negotiations on heroin supply charges involving a Form 1.

The second offender's role was assessed as considerably more limited. He was present on the day of the larger transaction and was aware of fake blocks in the vehicle, but his involvement was characterised as peripheral compared to the first offender. His Honour accepted he was to be paid $1,000 for transporting the fake blocks and had no admitted knowledge of the heroin transaction itself. His criminal history was minimal, comprising only a single drug possession fine.

The principle of parity, drawn from R v Postiglione and Lowe v R, required that the disparity between the two sentences reflect the genuine difference in the offenders' culpability. His Honour structured the sentences accordingly, with the second offender receiving a substantially shorter non-parole period.

Orders Made

  • First offender (primary supplier) convicted and sentenced to imprisonment with a non-parole period of 5 years and 8 months, commencing 8 August 2012 and expiring 7 April 2018, with a balance of term of 3 years and 6 months. The Form 1 offence was taken into account.
  • Second offender convicted and sentenced to imprisonment with a non-parole period of 2 years and 4 months, commencing 8 August 2012 and expiring 7 December 2014, with a balance of term of 1 year and 8 months expiring 7 August 2018.
  • Seized drugs ordered to be destroyed.

Key Takeaways

  • Under Muldrock v R, the standard non-parole period of 10 years for commercial drug supply under s 25(2) of the Drug Misuse and Trafficking Act 1985 operates as a legislative guidepost, not a mandatory starting point; the sentencing court weighs all relevant objective and subjective factors.
  • A guilty plea discount of approximately 15% may be appropriate where pleas are entered after arraignment and during a voir dire, rather than at the earliest opportunity, reflecting the reduced utilitarian value of a late plea.
  • The parity principle, confirmed in R v Postiglione and Lowe v R, requires that differences in sentence between co-offenders reflect genuine differences in their roles and culpability rather than arbitrary variation.
  • Proximity to a drug transaction, without direct participation in the supply itself, can support a finding of a more limited role and a substantially reduced sentence compared to the principal supplier.
  • General deterrence carries significant weight in sentencing for commercial heroin supply, even where an offender has otherwise favourable subjective circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v R (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- R v Postiglione (1997) 189 CLR 292
- Lowe v R (1984) 154 CLR 606
- Jimmey v R [2010] NSWCCA 60
- R v Thomson and Houlton [2000] NSWCCA 309
- Morton v R [2014] NSWCCA 8
- Borkowski v R [2009] NSWCCA 102