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Court of Criminal Appeal 10 February 2016

Nguyen v R

[2016] NSWCCA 5

Drugs
CRIMINAL LAW SENTENCE CHARACTER WHERE OFFENDER HAD NO PRIOR CONVICTIONS SENTENCE WHERE JURY CONVICTED THE OFFENDER

Citation: Nguyen v R [2016] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 10 February 2016
Judges: Gleeson JA, Rothman J, Bellew J (all agreeing)

Background

The appellant was convicted in the District Court of intentionally importing tier 1 goods (pseudoephedrine) while being reckless as to that fact, contrary to s 233BAA(4) of the Customs Act 1901 (Cth). Customs officers discovered 3,605 grams of pseudoephedrine, with a purity yielding approximately 2.341 kg of pure substance, concealed in packages labelled as palm sugar among her luggage on her return to Sydney in May 2012. She had packed the bags herself.

The appellant was sentenced to two years and six months' imprisonment, with a non-parole period of one year and six months. She sought leave to appeal, raising four grounds: that the sentence was manifestly excessive; that the sentencing judge wrongly treated her as not being of good character; that the judge erroneously characterised her offending as motivated by greed rather than need; and that the judge impermissibly sentenced her on the basis of knowledge rather than recklessness.

  • Whether the sentencing judge erred in finding the appellant was not of good character, after her evidence on sentence was rejected
  • Whether the sentencing judge's finding that the appellant had actual knowledge of the prohibited goods was inconsistent with the jury's verdict of recklessness
  • Whether the sentencing judge erred in characterising the offending as motivated by greed rather than need
  • Whether the sentence was manifestly excessive

Decision

Good character (Ground 2): The sentencing judge rejected the appellant's evidence on sentence about how she funded her extensive pattern of overseas travel. Having done so, the judge was entitled to conclude she was not of good character. The Court of Criminal Appeal confirmed that good character is not simply a matter of having no prior convictions. Where an offender gives evidence at sentence that is disbelieved, the sentencing judge may properly decline to treat the offender as a person of good character.

Recklessness versus knowledge (Ground 4): This was the most legally significant ground. The appellant argued that because the jury convicted her of an offence defined by reference to recklessness, the sentencing judge was not free to find, as an aggravating matter, that she actually knew the goods were prohibited. The Court rejected this argument. Under the Criminal Code 1995 (Cth), recklessness can be established by proof of intention or knowledge. The jury was not directed to distinguish between those bases, and the verdict was therefore consistent with a finding of knowledge. The sentencing judge was not bound to sentence on the most favourable factual basis simply because the charge was framed in terms of recklessness.

Greed versus need (Ground 3): The Court upheld the sentencing judge's finding that the offending was motivated by greed rather than financial necessity. The appellant's evidence as to her means was not accepted, and the frequency and cost of her overseas travel was inconsistent with her claimed income from occasional child-minding and cooking. Absent evidence establishing genuine financial hardship, the judge was entitled to draw that inference.

Manifest excess (Ground 1): The Court exercised the sentencing discretion afresh and reached the same result. The offending was serious, the quantity of pseudoephedrine was substantial, and the appellant's subjective case was described as unremarkable. General deterrence remained an important sentencing consideration for this type of offending. The Court noted the limited utility of comparing sentences across cases, particularly where most comparable cases involved significant guilty plea discounts that did not apply here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to treat an offender as being of good character merely because they have no prior convictions. Where evidence given on sentence is rejected, that rejection can properly ground a finding that the offender is not of good character.
  • Under the Criminal Code 1995 (Cth), recklessness encompasses proof of intention or knowledge. A jury verdict of recklessness does not preclude a sentencing judge from finding that the offender actually knew the relevant facts, provided that finding is consistent with how the jury was directed and what the verdict could have reflected.
  • The sentencing court is not automatically required to sentence on the most favourable factual basis open on a jury verdict. The permissible range of findings on sentence depends on what the verdict was capable of encompassing.
  • General deterrence remains a weighty consideration in sentencing for the importation of pseudoephedrine, even where the statutory offence is framed in terms of recklessness rather than intention.
  • Comparative sentencing exercises have limited value where the cases being compared involve fundamentally different circumstances, such as the presence or absence of a guilty plea discount.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BAA(4)
- Crimes Act 1914 (Cth), s 16A
- Criminal Code 1995 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Baxter v R [2007] NSWCCA 237
- Briouzguine v R [2014] NSWCCA 264
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- DPP (Cth) v El Kaharni (1990) 21 NSWLR 370
- Garcia v R [2013] NSWCCA 241
- Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
- R v Issacs (1997) 41 NSWLR 374
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
- R v Zerafa [2013] NSWCCA 222
- The Queen v Pham [2015] HCA 39
- Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584