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15
Court of Criminal Appeal 3 March 2017

Cam Huynh Giang v R

[2017] NSWCCA 25

Drugs
CRIMINAL LAW APPEALS SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: Cam Huynh Giang v R [2017] NSWCCA 25
Court: Court of Criminal Appeal, NSW
Date: 3 March 2017
Judge(s): Hoeben CJ at CL, Walton J, Latham J (judgment delivered by Latham J)

Background

The appellant pleaded guilty to two counts of supplying methylamphetamine: one count of supplying an indictable quantity and one count of supplying a commercial quantity (one kilogram at 81.5% purity). The offending arose from an undercover police operation targeting a Vietnamese criminal syndicate operating in the Liverpool and Canley Vale areas in late 2013 and early 2014. The appellant supplied drug samples to undercover operatives on multiple occasions before completing the principal commercial supply.

The sentencing judge imposed a fixed term of two years imprisonment on the first count and a sentence of five years non-parole period plus three years additional term on the second count, with partial accumulation producing an overall sentence of nine years with a six-year non-parole period. Three additional supply offences were taken into account on a Form One.

The appeal was out of time, but the Crown did not oppose an extension of time given the circumstances disclosed by the appellant's affidavit and one sworn by his Legal Aid solicitor.

  • Whether the role of undercover police operatives reduced the appellant's culpability, such that the sentencing judge erred by failing to account for this factor.
  • Whether the sentencing judge impermissibly considered subjective features of the appellant when assessing the objective gravity of the commercial supply offence and applying the standard non-parole period.
  • Whether the overall sentence was manifestly excessive by comparison with sentences imposed in comparable cases.

Decision

Ground One: Role of undercover operatives

The Court rejected this ground on multiple bases. The argument had not been raised before the sentencing judge, and the Court of Criminal Appeal reiterated that sentence appeals are not an opportunity to reformulate the case presented below. On the substance, the Court applied the test from R v Taouk (1992), which requires a real possibility that the offender would not have committed the offences but for the police involvement, and that this involvement diminished his culpability. The agreed facts demonstrated the appellant was a ready and willing supplier of high-grade methylamphetamine who proactively offered product, referred to his existing supplier network, and initiated contact with the operatives. No real possibility existed that he would not have offended but for police involvement.

The separate submission that no drug actually entered the community (because it was supplied to police) was also dismissed. The Court confirmed the established principle that this consideration carries no weight where the offender had no knowledge that his customer was a police operative.

Ground Two: Objective gravity and subjective features

The Court found no error in the sentencing judge's approach. The passage of the sentencing remarks challenged by the appellant, which referred to his role as a middleman acting under a degree of duress, was properly directed to mitigation rather than to the assessment of objective gravity. The Court accepted that, within the spectrum of commercial supply offences, the objective gravity of this offence was at the high end, and the sentencing judge had not conflated subjective and objective considerations. General deterrence was identified as an important factor, and the partial element of duress was appropriately weighed as a mitigating feature.

Ground Three: Manifest excess

The Court compared the sentence against B v R [2015] NSWCCA 314 and fourteen further cases drawn from JIRS statistics. Several of the comparison cases involved Crown appeals, substantial assistance discounts, or significantly smaller drug quantities. For commercial methylamphetamine supplies of between 296 grams and 999 grams, the survey of cases revealed sentences ranging from six to ten years. The sentence imposed on the appellant, taking into account the Form One offences, fell comfortably within that range. Leave to appeal was granted on all grounds, but each ground was dismissed.

Orders Made

• Grant leave to appeal on Ground Two but dismiss that ground of the appeal
• Grant leave to appeal on Ground Three but dismiss that ground of the appeal

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentence appeals cannot be used to raise arguments that were not put before the sentencing judge, reinforcing the principle stated in Vossos v R [2016] NSWCCA 262.
  • Under the test in R v Taouk (1992), an offender seeking a reduction in culpability based on police involvement must demonstrate a real possibility that, but for that involvement, he would not have committed the offences. Evidence of pre-existing willingness and an established supply network will ordinarily defeat that argument.
  • Supplying a prohibited drug to undercover police operatives does not, of itself, reduce an offender's culpability on the basis that the drug never reached the general community, where the offender believed he was supplying to a genuine purchaser.
  • A sentencing judge's reference to a middleman role and partial duress, placed within a discussion of mitigating factors, does not constitute an error of conflating subjective features with the assessment of objective gravity.
  • In dismissing the manifest excess ground, the Court identified that commercial methylamphetamine supply offences involving quantities between 296 grams and 999 grams have attracted sentences of between six and ten years, providing a useful (if non-binding) benchmark for comparable cases.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Taouk (1992) 65 A Crim R 387
- Anna LE v Regina [2006] NSWCCA 136
- R v Liu [2005] NSWCCA 328
- Lindsay v R [2012] NSWCCA 124
- B v R [2015] NSWCCA 314
- Kemp v R [2014] NSWCCA 153
- Vossos v R [2016] NSWCCA 262
- Muldrock v The Queen (2011) 244 CLR 120
- R v Huynh (2008) 180 A Crim R 517
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- RCW v R (No. 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541
- Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365
- AB v R [2013] NSWCCA 273
- Cherdchoochatri v R [2013] NSWCCA 118
- Kuti v R [2012] NSWCCA 43
- R v DW [2012] NSWCCA 66
- R v Riddell (2009) 194 A Crim R 524
- R v Botero (unrep, NSWCCA, 24 June 1998)