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Court of Criminal Appeal 14 October 2015

Nguyen v R

[2015] NSWCCA 268

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE REJECTION OF AGREED FACTS OBJECTIVE SERIOUSNESS NEED FOR DETERRENCE

Citation: Nguyen v R [2015] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 14 October 2015
Judges: Hoeben CJ at CL, Price J, Button J

Background

The applicant pleaded guilty in the District Court to one count of supplying a commercial quantity of a prohibited drug, specifically 44.305 kilograms of cannabis leaf, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 15 years imprisonment. He was sentenced to four years imprisonment with a non-parole period of three years, after a 25 per cent discount for the utilitarian value of his early guilty plea.

The applicant had been stopped by police while driving an unregistered vehicle. He fled the scene on foot, disposed of his mobile phone or phones during the chase, and was later arrested. Under police interview, he claimed he had been paid $20,000 to courier the cannabis from Rockdale to Hurstville for a person he called "Rob" or "Tony," whose whereabouts he could not identify. The agreed facts submitted to the sentencing court described his role as that of a courier.

The sentencing judge, however, declined to accept that agreed characterisation. He found the applicant's account wholly implausible, and sentenced him on the basis that his involvement exceeded that of a mere courier. The applicant sought leave to appeal against sentence on three grounds.

  • Whether the sentencing judge erred in rejecting the agreed fact that the applicant's role was limited to that of a courier.
  • Whether the sentencing judge erred in failing to make a finding of special circumstances, which under the Crimes (Sentencing Procedure) Act 1999 would allow the non-parole period to be reduced below the statutory default of three-quarters of the total sentence.
  • Whether the sentence was manifestly excessive.

Decision

Rejection of the courier role. Price J, with whom Hoeben CJ at CL and Button J agreed, confirmed that a sentencing court is not bound by agreed facts where those facts are not adequately supported by the evidence. The judge had found the applicant's account of his relationship with "Rob/Tony," the $20,000 payment, and his disposal of his phones to be entirely unbelievable. Because the applicant did not give evidence at the sentencing hearing, he failed to discharge the onus of demonstrating, on the balance of probabilities, that he was a courier. No error was established in the judge's approach.

Special circumstances. The Court found no error in the judge's treatment of this issue. The applicant had not given evidence at sentence, the psychologist's findings had not been accepted, and the judge was not obliged to find good prospects of rehabilitation. The judge had considered the applicant's age and lack of prior convictions, and the Court was satisfied that the absence of a special circumstances finding was open on the material before the sentencing court.

Manifest excess. The Court applied the established test from Markarian v R, requiring the applicant to show the sentence was unreasonable or plainly unjust. The Court noted the cannabis had a realistic wholesale value of over $300,000, that the offence carried a maximum of 15 years (higher than the 10-year maximum applicable in the cases the applicant relied upon), and that both specific and general deterrence are to be given real effect in drug supply matters. The 25 per cent discount for the early plea was accepted as appropriate. The Court was not persuaded the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not bound to accept agreed facts that characterise an offender's role where the underlying evidence does not support that characterisation, particularly where the offender's account is implausible and the offender has not given evidence at sentence.
  • Where an offender seeks to rely on a more favourable characterisation of their role (such as "mere courier"), the onus rests on the offender to establish that characterisation at least on the balance of probabilities.
  • The Court of Criminal Appeal confirmed that principles of specific and general deterrence in drug supply matters must be given real effect, not merely acknowledged in passing.
  • In dismissing the manifest excess ground, the Court noted that comparison cases founded on a 10-year maximum penalty offence under s 25 of the Drug Misuse and Trafficking Act 1985 were of limited utility where the offence before the court carried a 15-year maximum.
  • No error arises from declining to find special circumstances where the sentencing judge has properly considered the applicant's age, lack of prior convictions, and the other subjective features in evidence.

Legislation and Cases Referenced

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

Cases
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Radi v R [2013] NSWCCA 278
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Allen v R [2015] NSWCCA 113
- Caristo v R [2011] NSWCCA 7
- R v Uzabeaga [2000] NSWCCA 38
- R v Girard and Girard [2004] NSWCCA 170