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Court of Criminal Appeal 14 August 2019

Nguyen v R

[2019] NSWCCA 213

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL WHETHER DENIAL OF PROCEDURAL FAIRNESS APPEAL DISMISSED

Citation: Nguyen v R [2019] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 14 August 2019
Judges: Brereton JA, Johnson J, Lonergan J

Background

The appellant pleaded guilty in the District Court at Campbelltown to manufacturing a large commercial quantity of prohibited drugs, specifically 706.8 grams of methylamphetamine (of which 415.8 grams was pure methylamphetamine). The offence was committed on 16 December 2015, after legislative amendments had reduced the large commercial quantity threshold from one kilogram to 500 grams. The applicable maximum penalty was life imprisonment, with a standard non-parole period of 15 years.

The District Court sentenced the appellant to a total term of 7 years and 6 months, with a non-parole period of 5 years, 7 months and 15 days. The sentencing judge found that the objective seriousness of the offence fell well below the mid-range, and applied a 25% utilitarian discount for the early guilty plea.

The appellant sought leave to appeal against that sentence on three grounds: manifest excess, denial of procedural fairness, and failure to find special circumstances.

  • Whether the total sentence and non-parole period were manifestly excessive in the circumstances
  • Whether the sentencing judge denied the appellant procedural fairness by finding he was not manufacturing solely for personal use, without prior notice of that finding
  • Whether the sentencing judge erred by declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Procedural fairness: The Court of Criminal Appeal found no denial of procedural fairness. The agreed facts did not record that manufacturing solely for personal use was accepted as true, only that the appellant had asserted it when arrested. The Crown had explicitly submitted before the sentencing judge that the court should view that claim with circumspection, citing R v Qutami. The sentencing judge's finding directly responded to that submission, which the appellant had every opportunity to address. Ground 2 failed.

Special circumstances: The Court confirmed that identifying circumstances capable of constituting special circumstances does not compel a finding to that effect. The sentencing judge gave four reasons for declining to make the finding: the sentence as a whole left sufficient time on supervised parole for rehabilitation; this was not the appellant's first period of custody; he was not especially young; and no other relevant matters appeared. The appellant sought to rely on circumstances not advanced before the sentencing judge. The Court found no error in the reasoning below, and Ground 3 failed.

Manifest excess: The non-parole period of 5 years, 7 months and 15 days represented 37.5% of the standard non-parole period, or 50% before the plea discount was applied. The Court noted the appellant's prior conviction for supplying methylamphetamine and the need for both general and specific deterrence. The sentence was found to be well within the reasonable exercise of sentencing discretion. Ground 1 also failed.

A notable subsidiary issue arose from the sentencing judge's remarks, which misstated the pure methylamphetamine quantity as 41.58 grams rather than 415.8 grams. The Court characterised this as a slip of the tongue only, because the sentencing judge otherwise assessed objective seriousness on the basis of more than 700 grams of drug at close to 50% purity, consistent with the agreed facts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's misstatement of a drug quantity in oral remarks will not necessarily constitute a sentencing error if the surrounding reasons demonstrate that the objective seriousness of the offence was correctly assessed on the actual quantity.
  • Under MD v R, the existence of circumstances capable of constituting special circumstances does not compel a court to reduce the non-parole period below the statutory ratio: the decision requires both a factual finding and an evaluative judgment.
  • No denial of procedural fairness arose where the Crown expressly submitted at sentence that an unsworn claim of personal use should be treated with caution, and the sentencing judge's finding responded directly to that submission.
  • In assessing manifest excess, the Court applied the Muldrock framework, treating the maximum penalty and standard non-parole period as legislative guideposts and examining whether the sentence fell within the range of reasonable sentencing discretion given all findings.
  • A prior conviction for supplying the same drug is a relevant factor weighing against a finding of manifest excess, particularly where both general and specific deterrence are in play.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- MD v R [2015] NSWCCA 37
- Allen v R [2015] NSWCCA 113
- Caristo v R [2011] NSWCCA 7
- Clarke v R [2009] NSWCCA 49
- Hughes v R [2018] NSWCCA 2
- Jiang v R [2010] NSWCCA 277
- R v Cramp [2004] NSWCCA 264