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District Court 3 March 2018

R v Hoai Phi Peter Nguyen

[2018] NSWDC 425

Drugs
CRIME SENTENCE SUPPLY OF PROHIBITED DRUG 13.5 GRAMS OF ECSTASY

Citation: R v Hoai Phi Peter Nguyen [2018] NSWDC 425
Court: District Court of New South Wales
Date: 3 March 2018
Judge: Neilson DCJ

Background

The offender, a 22-year-old man, pleaded guilty to supplying 13.5 grams of MDMA (ecstasy) at a dance event held at Sydney Olympic Park's Royal Agricultural Society Showground on 13 May 2017. Police drug detection dogs flagged the offender at the venue entrance, and a search revealed 200 capsules of ecstasy concealed in his underwear, packaged within a series of nested condoms.

The offender admitted in a recorded police interview that he had purchased the drugs for $3,000 and intended to sell each capsule for between $20 and $30, with a potential gross return of approximately $5,000. He acknowledged making prior arrangements with at least two people to supply them at the event. The drugs were intercepted before any supply actually occurred.

At the time of the offence, the offender was not a drug user. He described his motivation as financial, seeking a quick profit while under some financial pressure, including contributing to his mother's household expenses.

  • What sentence was appropriate for a supply of prohibited drug (ecstasy) in a quantity nearly 11 times the indictable quantity but well below the commercial quantity?
  • How should the court weigh general deterrence against the offender's strong personal circumstances, genuine remorse, and low risk of reoffending?
  • Whether a custodial sentence was required, and if so, whether suspension under section 12 of the Crimes (Sentencing Procedure) Act 1999 was appropriate.

Decision

Neilson DCJ found that this was a purely financially motivated offence with no mitigating feature arising from drug dependency. The quantity, 13.5 grams, was nearly 11 times the indictable quantity but significantly less than the commercial quantity of 125 grams. The court noted that the maximum penalty of 15 years imprisonment is reserved for the most serious cases, and this case did not approach that threshold.

The court acknowledged the offender's personal circumstances as uniformly favourable. Since the offence, he had qualified as a licensed carpenter, was earning substantially more than at the time of the offence, and had attracted strong character references attesting to his work ethic and genuine remorse. The court accepted that the likelihood of reoffending was extremely low and that rehabilitation was well advanced.

Despite these favourable factors, Neilson DCJ held that a custodial sentence was necessary, primarily because of the need for general deterrence. Young people attending such events needed to understand that courts regard drug supply seriously, given Parliament's prescription of a 15-year maximum. Statistical data from the Judicial Commission showed that around 17% of comparable offenders received fulltime imprisonment, with the median sentence for that cohort being approximately two years.

The court sentenced the offender to 18 months imprisonment but suspended the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, releasing him on a good behaviour bond for the same period. The court emphasised that any reoffending during the bond would likely result in the suspension being revoked and a term of imprisonment being served.

Orders Made

  • The offender was convicted and sentenced to 18 months imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The offender was released on a good behaviour bond for 18 months, commencing 3 March 2018, subject to conditions including residing at a specified address and notifying the Registrar of any change of residential address.
  • The backup charge of possession of a prohibited drug was dismissed by consent.
  • The seized ecstasy was ordered to be destroyed.
  • The offender's mobile phone was forfeited by consent, in accordance with a consent order filed with the court.

Key Takeaways

  • A sentence of 18 months imprisonment, fully suspended, was imposed for the supply of 13.5 grams of ecstasy (approximately 11 times the indictable quantity), reflecting the weight of favourable personal circumstances against the imperative of general deterrence.
  • General deterrence carries significant weight in drug supply sentencing, particularly where supply occurs at public entertainment venues, even when the offender presents with strong rehabilitation prospects and a low risk of reoffending.
  • The court distinguished between financially motivated supply and supply driven by personal drug dependency, treating the former as more cynical and therefore less mitigating, even for a young offender.
  • Where the drug quantity falls well below the commercial quantity and the drugs were intercepted before reaching any recipient, those factors operate to bring the offence below the most serious range, though they do not displace the need for a custodial response.
  • Judicial Commission statistics, showing that 39% of comparable offenders received suspended sentences and 17% received fulltime imprisonment, informed the sentencing exercise and situated the outcome within the accepted range for this type of offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 9, 10, 12

Cases cited: No specific cases were cited in the judgment.