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Court of Criminal Appeal 21 June 2019

Nguyen v R

[2019] NSWCCA 131

Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCES AGGREGATE SENTENCING WHERE JUDGE TOLD OF STANDARD NON PAROLE PERIOD THAT DID NOT EXIST

Citation: Nguyen v R [2019] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 21 June 2019
Judge(s): Basten JA; Hamill J (principal judgment); Lonergan J

Background

The appellant was sentenced in the District Court in June 2018 following convictions for three offences: knowingly taking part in the cultivation of a large commercial quantity of cannabis plants (506 plants across three hydroponic premises), recklessly dealing with the proceeds of crime ($44,000 in cash), and supplying a commercial quantity of cannabis leaf (54.45 kilograms). The sentencing judge imposed an aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and 9 months.

The appellant sought leave to appeal on four grounds, broadly challenging the discount applied for her guilty plea, the adequacy of reasons given for two of the offences, the sufficiency of the evidentiary basis for findings of objective seriousness, and manifest excess in the overall sentence.

A fifth and ultimately decisive ground emerged not from the appellant, but from Crown counsel. In responding to the appellant's written submissions, counsel for the respondent identified that the sentencing judge had proceeded on the basis of an incorrect maximum penalty and a non-existent standard non-parole period for the cannabis supply offence.

  • Whether the sentencing judge erred by applying a maximum penalty of 20 years (rather than the correct 15 years) to the cannabis leaf supply offence under s 33(2)(b) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the sentencing judge erred by applying a standard non-parole period to the cannabis leaf supply offence, when no such standard non-parole period exists for cannabis-related offences
  • Whether the discount for the guilty plea should have been 25% rather than the 20% applied
  • Whether the sentencing judge made insufficient findings or provided inadequate reasons in assessing the objective seriousness of two of the offences
  • Whether the overall aggregate sentence was manifestly excessive

Decision

The sentencing error (ground 5): The Court identified a significant error in the sentencing proceedings. The prosecution's sentence summary, tendered as an exhibit in the District Court, stated that the cannabis leaf supply offence carried a maximum penalty of 20 years and a standard non-parole period of 10 years. Both statements were wrong. Under s 33(2)(b) of the Drug Misuse and Trafficking Act 1985, the correct maximum for cannabis offences is 15 years. The table of standard non-parole periods following s 54D of the Crimes (Sentencing Procedure) Act 1999 expressly excludes cannabis leaf offences, meaning no standard non-parole period applied at all. The respondent conceded the error, and the Court held it was an error in the sentencing proceedings that necessarily required intervention. Because both figures are significant statutory guideposts to the proper exercise of sentencing discretion, resentencing was required under the approach confirmed by the High Court in Kentwell v The Queen.

Grounds 1 to 3 (original appeal grounds): The Court dealt with these briefly given that a full resentencing was required. On the plea discount, the Court rejected the argument that a full 25% discount was mandated. The sentencing judge's reduction to 20% reflected the utilitarian value of the plea, and the Court found no error in that assessment. On objective seriousness and the adequacy of reasons, the Court rejected both grounds, noting that where evidence does not establish the precise role of an offender, the sentencing court cannot make findings in the offender's favour on that basis. Ground 4 (manifest excess) was rendered unnecessary to determine once the resentencing power was enlivened.

Resentencing: The Court resentenced the appellant by applying the correct maximum penalty of 15 years and removing the inapplicable standard non-parole period from the analysis. Taking into account a 25% plea discount on resentencing, the Court imposed an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months, commencing 8 September 2016. This represented a reduction from the original aggregate of 5 years and 9 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof, the appellant sentenced to an aggregate term of 5 years imprisonment with a non-parole period of 3 years and 2 months, commencing 8 September 2016 and expiring 7 November 2019, with the total sentence expiring 7 September 2021
  • The appellant eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • A sentencing judge's reliance on an incorrect maximum penalty and a non-existent standard non-parole period constitutes an error in the sentencing proceedings that requires the appellate court to exercise the sentencing discretion afresh, consistent with Kentwell v The Queen.
  • Under s 33(2)(b) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for supplying a commercial quantity of cannabis is 15 years, not 20 years. Cannabis leaf offences are also excluded from the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999.
  • The error in this case went undetected by both the sentencing judge and the appellant's legal representatives, and was ultimately raised by counsel for the Crown. The Court of Criminal Appeal treated the respondent's concession as correct and acted upon it.
  • Where an offender cannot establish their precise role in an offence through evidence, the sentencing court is not permitted to draw inferences in their favour about the nature or extent of that involvement, applying the principle from The Queen v Olbrich.
  • In dismissing the original grounds of appeal on the plea discount, the Court confirmed that the appropriate discount is assessed by reference to the utilitarian value of the plea in the particular circumstances, and a reduction below 25% may be justified where the plea was not entered at the earliest opportunity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53, 53A, 54B and 54D
- Drug Misuse and Trafficking Act 1985 (NSW), s 33(2)(b)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- PG v R [2017] NSWCCA 179
- R v Cardoso [2003] NSWCCA 15