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District Court 8 November 2019

R v Nguyen

[2019] NSWDC 905

DrugsFraud & dishonesty
CRIME AGGREGATE SENTENCE RECKLESSLY DEAL WITH PROCEEDS CRIME JOINT CRIMINAL ENTERPRISE PARITY WITH CO ACCUSED

Citation: R v Nguyen [2019] NSWDC 905
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Norrish QC DCJ

Background

The offender was sentenced for manufacturing a large commercial quantity of a prohibited drug and three counts of recklessly dealing with proceeds of crime. The drug manufacturing charge arose from a joint criminal enterprise with a co-accused, Mr Tannous, who had been sentenced by the same judge in July 2018.

The central challenge at sentencing was achieving an appropriate and principled distinction between the offender's sentence and the sentence already imposed on the co-accused. Parity principles required the court to account for relevant differences between the two men rather than impose an identical outcome.

The offender had a prior conviction for importing a marketable quantity of a border-controlled drug, for which he had served a term of imprisonment. That prior history was a significant factor distinguishing him from Mr Tannous, who had no criminal record.

  • What aggregate sentence was appropriate for the manufacturing and proceeds of crime offences, applying totality principles?
  • How should the sentence reflect parity with the co-accused Mr Tannous while accounting for the differences between them?
  • What discount was appropriate for the utilitarian value of the guilty pleas?
  • What weight should be given to mitigating factors, including prospects of rehabilitation and remorse?
  • Did the offender's prior criminal history affect the sentencing analysis, including the likelihood of reoffending?

Decision

The court imposed an aggregate sentence of ten years imprisonment, commencing 14 April 2016 and expiring 13 April 2026, with a non-parole period of six years and six months expiring 13 October 2022. A special circumstances finding adjusted the ratio of the non-parole period to the balance of sentence to some extent.

The court distinguished the offender from Mr Tannous on several grounds. Mr Tannous had received a 30% discount for his guilty plea; the offender received 25%. Mr Tannous had a documented mental illness, a history of regular employment, significant vulnerability at the time of offending, and a finding of non-exculpatory duress, all of which had justified reduced weight on general deterrence, specific deterrence, and moral culpability. None of those features applied to the offender.

The offender's prior conviction for a serious importation offence meant the court could not find he was unlikely to reoffend, though it did accept a degree of remorse and found prospects of rehabilitation as mitigating factors. The court also noted the three additional proceeds of crime charges, observing that count 3 (involving a Rolex watch) was a matter of some substance, though the three charges together added only approximately one year to the aggregate sentence.

The court acknowledged it could have drawn an even greater distinction from Mr Tannous's sentence but chose not to, applying an instinctive synthesis of all relevant matters. Norrish QC DCJ also commented critically on the delay of three and a half years between charge and sentence, describing it as an embarrassment to the system, though he did not treat the delay as a factor adverse to the offender.

Orders Made

  • Aggregate sentence of ten years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 14 April 2016 and expiring 13 April 2026
  • Non-parole period of six years and six months, expiring 13 October 2022
  • Indicative sentence on count 1 (manufacture large commercial quantity of prohibited drug): nine years imprisonment with a non-parole period of six years
  • Indicative sentence on count 2 (recklessly deal with proceeds of crime, $4,500): 12 months imprisonment
  • Indicative sentence on count 3 (recklessly deal with proceeds of crime, Rolex watch): two years and three months imprisonment
  • Indicative sentence on count 4 (recklessly deal with proceeds of crime, $600.70): nine months imprisonment

Key Takeaways

  • The District Court applied parity principles by carefully identifying and articulating the specific features that justified a higher sentence for this offender compared to a co-accused sentenced by the same judge the previous year.
  • A prior conviction for a serious drug offence did not automatically constitute a statutory aggravating factor, but it was sufficient to preclude any leniency on the basis of good character and prevented a finding that the offender was unlikely to reoffend.
  • Where one co-accused had documented mental illness, a finding of non-exculpatory duress, and greater personal vulnerability, those factors could support reduced weight on deterrence and moral culpability in that co-accused's sentencing without carrying across to the other.
  • Guilty pleas entered at different times or in different circumstances can attract different percentage discounts, with the offender here receiving 25% compared to the co-accused's 30%.
  • Under the aggregate sentencing regime, indicative sentences for less serious offences (here, the proceeds of crime charges) need not dramatically increase the overall sentence if the totality of criminality is already reflected in the sentence for the principal offence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes Act 1900 (NSW)

Cases
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- Postiglione v R (1997) 189 CLR 295
- Jimmy v R (2010) 77 NSWLR 540
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Chen v R [2010] NSWCCA 224
- R v Holder (1983) 3 NSWLR 245