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Court of Criminal Appeal 10 August 2018

Nguyen, The Tao v R

[2018] NSWCCA 176

Drugs
CRIME SENTENCE APPEAL

Citation: Nguyen, The Tao v R [2018] NSWCCA 176
Court: Court of Criminal Appeal
Date: 10 August 2018
Judge(s): Hoeben CJ at CL; Price J; Davies J

Background

The appellant pleaded guilty in the Local Court to two offences of supplying a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offences related to the supply of oxycodone and fentanyl to another person over two separate 30-day periods in 2014, each involving multiple transactions for financial gain. The appellant confirmed those pleas in the District Court and was sentenced to an aggregate term of imprisonment of 3 years and 4 months, with a non-parole period of 2 years.

On the agreed facts placed before the sentencing judge, some of the individual transactions were actual, completed supplies, while others were agreements or offers to supply. The distinction matters because s 3(1) of the DMT Act contains an extended definition of "supply" that encompasses not only actual supply but also agreeing or offering to supply.

The central dispute on appeal was whether the sentencing judge erred by treating the agreements to supply as relevant conduct when assessing the objective gravity of the offences. The appellant argued that s 25A is confined to actual supplies for financial or material reward, and that the extended definition of "supply" should not apply to that provision.

  • Whether the offence under s 25A of the DMT Act requires three or more occasions of actual supply for financial or material reward, or whether the extended definition of "supply" in s 3(1) applies so that agreements and offers to supply can also count.
  • Whether the sentencing judge erred by taking into account agreements to supply when assessing the objective seriousness of the offences and the quantities involved.

Decision

Price J, with whom Hoeben CJ at CL and Davies J agreed, rejected the appellant's construction of s 25A. His Honour held that s 25A is not confined to actual supplies. The extended definition of "supply" in s 3(1) of the DMT Act, which includes agreeing or offering to supply, applies to the offence.

Price J reasoned that the extended definition pre-dated the enactment of s 25A and found no rational basis for excluding it from the new provision. The legislature intended s 25A to complement the existing statutory scheme rather than depart from it.

His Honour also focused on the preposition "for" in the phrase "for financial or material reward," concluding that it places the accused's purpose at the centre of the offence. Where an accused's purpose in any act of supply, whether actual, agreed, or offered, is to obtain financial or material reward, the offence under s 25A can be established provided the other elements are satisfied. Conversely, where there is no financial or material purpose, none of the acts would fall within s 25A regardless of their number.

On this construction, the sentencing judge was entitled to take into account the agreements to supply when assessing the objective gravity of the offences. No error was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal held that the extended definition of "supply" in s 3(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which includes agreeing or offering to supply, applies to the ongoing supply offence in s 25A.
  • An offence under s 25A is not limited to occasions of actual, completed supply. Agreements and offers to supply for financial or material reward can satisfy the required elements.
  • The critical element distinguishing s 25A conduct is purpose: the act of supply, in whatever form, must be undertaken for financial or material reward. Supplies made without any such purpose do not fall within the section.
  • In dismissing the appeal, the Court confirmed that a sentencing judge may properly take into account agreements to supply when assessing objective gravity, provided those agreements were made for financial or material reward.
  • Earlier observations in Tran, Ty v R [2007] NSWCCA 140, where Rothman J described s 25A as requiring "ongoing actual supply," were not followed on this point; the Court of Criminal Appeal here expressly adopted the broader construction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 25, 25A
- Poisons and Therapeutic Goods Act 1966 (NSW), s 10

Cases:
- Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104
- Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
- R v Jackson [2004] NSWCCA 110
- Tran, Ty v R [2007] NSWCCA 140