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District Court 20 March 2015

R v Hoang; R v Xiao; R v Nguyen

[2015] NSWDC 197

Drugs
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES DRUG OFFENCES CONSPIRACY TO SUPPLY PROHIBITED DRUG CRIMINAL SYNDICATE

Citation: R v Hoang; R v Xiao; R v Nguyen [2015] NSWDC 197
Court: District Court of New South Wales
Date: 20 March 2015
Judge(s): Cogswell SC DCJ

Background

Three members of a criminal syndicate were sentenced for their roles in importing pseudoephedrine (a precursor used to manufacture methylamphetamine) into Australia and supplying it within New South Wales. Two of the offenders, Robin Xiao and Ann Hoang, acted as couriers who travelled overseas to collect drug-laden packages and bring them back through Sydney Airport. The third offender, Thi Kim Ngan Nguyen, remained in Australia and performed an organisational role, assessing couriers for suitability, relaying information between co-offenders, and directing operations during the critical window when the imported drugs were expected to arrive.

All three faced charges under NSW State law rather than Commonwealth importation offences. Xiao and Hoang were each charged with supplying a commercial quantity of pseudoephedrine under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Nguyen, given her organisational rather than courier role, was charged with conspiracy to supply a prohibited drug. Each offender pleaded guilty at an early stage and asked the court to take additional ephedrine supply offences into account on a Form 1 (a mechanism that allows the court to take extra offences into account at sentencing without recording a separate conviction).

The quantities involved were substantial. Xiao was responsible for just over 4 kilograms of pseudoephedrine, Hoang for 2.3 kilograms, and Nguyen for just over 4 kilograms via her conspiracy charge. All amounts exceeded the commercial quantity threshold under the relevant legislation, triggering a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years for each principal offence.

  • How should the court assess the objective seriousness of supply offences where the underlying conduct involved the importation of drugs from overseas rather than domestic supply?
  • How should roles within a criminal syndicate be characterised and ranked for sentencing purposes, given the artificial nature of hierarchical labels?
  • Whether the principles in R v Clark (concerning sentencing for a single large commercial supply) applied to any of these offenders, and if so, to which one.
  • What discount was appropriate for early pleas of guilty?
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period in any of the cases.
  • Whether the commencement of a sentence should be deferred due to one offender's pregnancy.

Decision

Cogswell SC DCJ assessed each offender's objective criminality by reference to the activity they actually engaged in, rather than by working from an abstract hierarchy within the syndicate. The court noted that labelling offenders as occupying a particular rank in an organisation can be an artificial exercise, and that what matters is the specific conduct proved against each individual. The offences were treated as supply (not importation) matters under NSW law, and the court assessed their gravity accordingly.

Xiao and Hoang, as couriers who physically transported the drugs, were assessed at a similar level of objective seriousness, with Xiao's quantity being larger than Hoang's. Nguyen, as an organiser who did not travel but coordinated the operation, was assessed as bearing greater overall culpability than the couriers, notwithstanding that she did not personally carry the drugs. The court applied the Clark principles (which address sentencing for a single large commercial supply, as distinct from ongoing dealing) to one of the commercial supply offences.

Each offender received a 25% discount on their sentence for their early pleas of guilty. The court found special circumstances in each case, justifying a longer parole period (and thus a shorter non-parole period relative to the head sentence) than would otherwise apply under the standard one-third ratio. The special circumstances finding reflected factors including the offenders' rehabilitation prospects and their need for supervised support upon release.

The court deferred formal sentencing for Nguyen due to her pregnancy, adjourning proceedings to 1 May 2015 to assess the progress of her pregnancy before committing her sentence to commence. Bail was continued on existing conditions, with the addition that Nguyen was required to notify the court and the officer in charge if her pregnancy ended.

Orders Made

  • Robin Xiao: convicted of supplying a commercial quantity of pseudoephedrine; sentenced to 4 years' imprisonment with a non-parole period of 2 years and 4 months, commencing 20 March 2015 and expiring 19 July 2017; balance of term of 1 year and 8 months expiring 19 March 2019; Form 1 offence (supplying ephedrine) taken into account.
  • Ann Hoang: convicted of supplying a commercial quantity of pseudoephedrine; sentenced to 4 years' imprisonment with a non-parole period of 2 years and 4 months, commencing 20 March 2015; Form 1 offence (supplying ephedrine) taken into account.
  • Thi Kim Ngan Nguyen: convicted of conspiracy to supply a commercial quantity of pseudoephedrine; sentenced to 6 years' imprisonment with a non-parole period of 3 years and 4 months; Form 1 offence (conspiracy to supply ephedrine) taken into account.
  • Formal sentencing of Nguyen adjourned to 1 May 2015 under s 11(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to assess the progress of her pregnancy; bail continued on existing conditions with an additional notification condition.

Key Takeaways

  • The District Court confirmed that where offenders are charged with NSW supply offences arising from conduct that also involved importation, the court assesses the gravity of the offence by reference to the supply activity actually proved, not the importation conduct that underpinned it.
  • Characterising roles within a criminal syndicate as a formal hierarchy can be an artificial exercise; the sentencing court focused on each offender's actual conduct and contribution to determine objective seriousness.
  • A 25% discount for early guilty pleas was applied across all three offenders, consistent with the court's recognition of the utilitarian value of those pleas and the offenders' acceptance of responsibility.
  • Special circumstances were found in each case, permitting the court to depart from the standard ratio between the head sentence and non-parole period in favour of a longer supervisory period upon release.
  • Under s 11(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court has power to adjourn formal sentencing where an offender's pregnancy makes it appropriate to defer the commencement of a custodial sentence, while keeping bail conditions in place.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- R v Clark, NSWCCA, 15 March 1990 (unreported)
- R v Yin [2013] NSWDC 234
- R v Zheng [2013] NSWDC 151