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District Court 29 March 2019

R v Nguyen

[2019] NSWDC 174

Drugs
SENTENCING SINGLE COMMONWEALTH OFFENCE CONTROLLED DRUG COCAINE S 16BA SCHEDULE OFFENCES GUILTY PLEA

Citation: R v Nguyen [2019] NSWDC 174
Court: District Court of New South Wales
Date: 29 March 2019
Judge(s): M L Williams SC DCJ

Background

The offender, a fleet manager at Parcel Post Logistics (PPL), a delivery company contracted to Australia Post, was involved in a crime syndicate that exploited insider knowledge of the courier system to import and receive border-controlled drugs. His role was to organise delivery addresses and coordinate the receipt of drug consignments once they arrived in Australia. He used a PPL delivery driver, referred to in communications as calling the offender "boss," to accept parcels at residential addresses.

The principal offence concerned a consignment exported from Scottsdale, Arizona in mid-2016 containing 1,002 grams of compressed white powder, ultimately identified as 651 grams of cocaine at 65% purity, concealed within a hollowed-out book. The offender personally approached the driver to arrange acceptance of the parcel at a Shell Cove address.

In December 2016, Australian Federal Police executed a search warrant at the offender's home and found a small quantity of MDMA. A further quantity of MDMA was located at his parents' residence in Cabramatta. The offender had been in custody since his arrest on 20 December 2016, a period of approximately two years and three months at the time of sentencing.

  • The appropriate sentence for a single Commonwealth offence of attempted possession of a marketable quantity of a border-controlled drug (cocaine), contrary to s 307.6(1) of the Criminal Code (Cth)
  • The weight to be given to a late guilty plea attracting a 10% discount under the principles in R v Xiao
  • How two MDMA trafficking counts, taken into account under s 16BA of the Crimes Act 1914 (Cth), should affect the overall sentence
  • The relevance of the offender's prospects of rehabilitation, custodial conduct, drug addiction history, and personal background to the sentencing outcome
  • Parity with sentences imposed on co-offenders and other comparable cases

Decision

The District Court characterised the principal offence as a mid-level example of attempted possession, noting the cocaine comprised 325 times the marketable quantity of a border-controlled drug. The offender's role was integral to the distribution chain within Australia, but he had no involvement in determining how the drugs were smuggled into the country, no knowledge of the quantity or purity, and no direct financial reward. His motivation appeared to be receiving cocaine for personal use rather than monetary gain, though he had been recruited by those higher in the importation chain.

The court placed significant weight on general deterrence, observing that involvement at any level in drug importation must attract a custodial sentence given the difficulty of detection and the serious social consequences of drug trafficking. At the same time, the offender's good prospects of rehabilitation were treated as a meaningful mitigating factor. He had an excellent custodial record, was employed in a position of trust as a prison sweeper, had completed the RUSH and 12-Step programs, and had remained drug free throughout his remand period. Expert evidence from a psychologist and toxicologist supported a finding that he had suffered from a severe cocaine use disorder and a mild gambling disorder at the time of the offending, which directly influenced his decision-making.

The court applied a 10% discount for the late guilty plea on the basis that it had assisted the administration of justice. The two MDMA trafficking counts were taken into account under s 16BA of the Crimes Act 1914 (Cth) rather than sentenced separately, consistent with the approach adopted for analogous State offence schedule matters.

On parity, the court distinguished the offender's situation from that of a co-offender (Mr Phanthavy), who had been sentenced to seven years and three months with a non-parole period of four years and nine months. Phanthavy had been convicted of two substantive offences involving significantly larger quantities of both cocaine and heroin, had entries in a ledger indicating numerous transactions, faced a money laundering matter involving $60,000, offended for financial reward, had a significant criminal record, and had made no rehabilitative efforts in custody. The court accepted that these differences justified a substantially lighter sentence in the present case.

Orders Made

  • The offender was convicted of the principal offence under s 307.6(1) of the Criminal Code (Cth)
  • Taking into account the s 16BA scheduled matters (the two MDMA trafficking counts), a sentence of 6 years imprisonment was imposed, commencing 20 December 2016 and expiring 19 December 2022
  • A non-parole period of 3 years was imposed, expiring 19 December 2019, making the offender eligible for release to parole on that date
  • In relation to sequence 008, the offender was convicted and, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, no further penalty was imposed
  • Sequences 007 and 009 were withdrawn

Key Takeaways

  • A late guilty plea in Commonwealth drug proceedings attracted only a 10% discount in this case, applied in accordance with the principles summarised by the Court of Criminal Appeal in R v Xiao [2018] NSWCCA 4.
  • General deterrence remains a dominant sentencing consideration for drug importation offences at any level of the distribution chain, given detection difficulties and the broader social harm caused by illicit drug trafficking.
  • Strong prospects of rehabilitation, demonstrated by an excellent custodial record, completion of rehabilitation programs, and expert evidence of a drug use disorder contributing to the offending, can materially reduce the sentence imposed even for serious Commonwealth drug offences.
  • Parity analysis requires close attention to the specific features distinguishing co-offenders, including the number of charges, financial motivation, criminal history, and conduct in custody. The District Court found those differences here justified a substantially lower sentence than that imposed on a co-offender.
  • Under s 16BA of the Crimes Act 1914 (Cth), related schedule offences are taken into account in the overall sentencing exercise in a manner broadly analogous to Form 1 matters in State proceedings, without the imposition of separate penalties.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.6(1) (attempt to possess a marketable quantity of a border-controlled drug)
- Crimes Act 1914 (Cth), Part 1B (sentencing principles); s 16BA (taking other offences into account)
- Crimes (Sentencing Procedure) Act (NSW), s 10A

Cases
- R v Xiao [2018] NSWCCA 4
- Awad Nakhla v R [2011] NSWCCA 143
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Nikolovska [2010] NSWCCA 169
- R v Toeh Ban Joo [2018] VSCA 239
- R v UE [2016] QCA 58