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District Court 26 September 2014

R v Nguyen

[2014] NSWDC 357

Drugs
CRIMINAL

Citation: R v Nguyen [2014] NSWDC 357
Court: District Court of New South Wales
Date: 26 September 2014
Judge: Judge S Norrish QC

Background

The offender, Giang Nam Nguyen, pleaded guilty to supplying a large commercial quantity of a prohibited drug, specifically approximately 2.98 kilograms of methylamphetamine ("ice"), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence occurred on 5 June 2013 at Bondi Junction. The offender was intercepted by police following a covert operation involving telephone intercepts and physical surveillance.

The broader facts involved a co-accused, Mr Birnie, who had been recruited in Canada to travel to Australia and act as a "sleeper" courier, holding the drugs until they could be transferred. Nguyen attended Birnie's rented apartment carrying an empty backpack, collected the drugs, and was arrested shortly afterwards in possession of a Nike backpack containing three bags of methylamphetamine with a purity of approximately 85.5%.

Nguyen gave an interview to police after his arrest, naming the intended recipient of the drugs. The court did not accept that he told police the full truth, though it accepted that police were already independently aware of the person he named. He was to receive $1,000 for acting as an intermediary in the transfer.

  • What sentence was appropriate for a large commercial quantity methylamphetamine supply offence where the offender pleaded guilty at the first reasonable opportunity?
  • What discount applied for the early guilty plea?
  • How did the offender's role as an internal courier compare to that of the co-accused Birnie, and how did that comparison affect the sentence?
  • What weight should be given to the offender's personal circumstances and conduct in custody?

Decision

The court accepted that Nguyen's role was that of an internal courier rather than a primary distributor, a characterisation not contested by the Crown. While his role was described as significant, because it formed a mechanism by which drugs were passed on for wider community distribution, the court found his objective criminality was somewhat less serious than Birnie's.

Three factors distinguished Nguyen's culpability favourably from Birnie's. Birnie had a longer period to contemplate his involvement, had travelled to Australia specifically to commit the offence, and was to receive greater remuneration. These distinctions carried weight in the comparative sentencing exercise.

The court applied a 25% discount to the otherwise appropriate sentence to reflect the utilitarian value of the guilty plea entered at the first reasonable opportunity, consistent with R v Thomson and Houlton. The court also took into account the offender's time in custody since arrest on 5 June 2013 and his good behaviour while in custody.

The standard non-parole period of 15 years under the Crimes (Sentencing Procedure) Act 1999 was a relevant guidepost, consistent with the principles in Muldrock v R, but the sentence ultimately reflected the specific circumstances of this offender's role and personal history.

Orders Made

  • Total sentence of six years' imprisonment imposed
  • Non-parole period of three years and three months
  • Both sentences backdated to commence from the date of arrest, 5 June 2013
  • Charge of possessing a prohibited drug (s 166 Certificate) dismissed pursuant to s 167 of the Criminal Procedure Act 1986
  • Order made for destruction of seized drugs

Key Takeaways

  • An internal courier who transfers a large commercial quantity of methylamphetamine between co-offenders occupies a significant role in the supply chain, even where that person is not the primary intended recipient for distribution purposes.
  • Comparative sentencing between co-offenders required the District Court to identify specific factual differences in culpability, including the degree of planning, period of contemplation, travel to commit the offence, and level of remuneration.
  • A guilty plea entered at the first reasonable opportunity attracted a 25% discount on sentence, in accordance with the established Thomson and Houlton approach.
  • Where a co-accused had greater exposure, a longer period of premeditation, and higher remuneration, those differences justified a more favourable sentence for the offender with lesser involvement, even where their immediate roles were broadly similar.
  • Release to parole at the expiry of the non-parole period remained subject to the Parole Authority's determination, and the court noted that the nature of the offence did not require the completion of any specific rehabilitation programmes as a condition of parole eligibility.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Muldrock v R (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- Lowe v R [1984] HCA 46
- Postiglione v R [1997] HCA 26
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Jimmy v R [2010] NSWCCA 60
- R v Buttrose [2011] NSWCCA 35
- R v Birnie [2014] NSWDC 146
- R v Shi [2004] NSWCCA 135