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Court of Criminal Appeal 25 March 2020

Nguyen v R

[2020] NSWCCA 45

Drugs

Citation: Nguyen v R [2020] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 25 March 2020
Judges: Hoeben CJ at CL, Price J, Lonergan J

Background

The appellant was convicted after trial in the District Court of importing a border-controlled precursor, namely pseudoephedrine, contrary to s 307.11(1) of the Criminal Code (Cth). Australian Border Force officers intercepted her at Sydney Airport, discovering pseudoephedrine concealed in the walls and base of a cardboard box and inside packets of food. The maximum penalty for the offence is 25 years imprisonment and/or 5,000 penalty units.

The sentencing judge imposed a total term of 7 years with a non-parole period of 3 years and 6 months. The appellant sought leave to appeal on the grounds that the sentencing judge had, among other things, made factual errors about the quantity of drug imported.

A significant feature of the sentencing proceedings was that agreed facts placed the quantity imported at approximately 3.996595 kg. The sentencing judge nonetheless twice recorded the total as 7.8 kg, which was a figure derived from an earlier estimate in the police facts sheet that included the weight of the cardboard box itself and its concealment materials.

  • Whether the sentencing judge erred in finding the appellant imported 7.8 kg of pseudoephedrine when the agreed quantity was approximately 3.996595 kg
  • Whether the sentencing judge erred in stating the street value of pure pseudoephedrine was approximately $100,000 per kilogram when the evidence supported a range of $80,000 to $90,000 per kilogram
  • Whether the sentence was manifestly excessive

Decision

The Crown conceded the first ground, accepting that the sentencing judge had mistaken an agreed fact by treating 7.8 kg as the total imported quantity. This was the figure drawn from an early estimate that did not reflect the actual weight of the precursor alone, as later established by agreed facts. Because the Crown properly conceded this error, the Court of Criminal Appeal granted leave to appeal and proceeded to resentence the appellant.

The Court confirmed it was unnecessary to resolve Grounds 2 and 3 once Ground 1 was made out. However, Lonergan J noted that the original sentence had proceeded on the basis of nearly double the agreed quantity of drug, a factor of real significance to the gravity of the offending and therefore to the appropriate sentence.

In resentencing, Lonergan J accepted the District Court's remaining findings, which both parties agreed should stand. The court took into account the appellant's prior conviction for importing heroin (also concealed during travel from Vietnam), her diagnosed mild intellectual disability, her vulnerability to exploitation and coercion, and the need for a lengthy supervised period in the community upon release. The Court found that a total sentence of 6 years with a non-parole period of 3 years adequately addressed the criminality involved.

Orders Made

  • Leave to appeal granted; sentence imposed on 18 September 2018 set aside
  • Appellant resentenced to a non-parole period of 3 years commencing 31 August 2018, with a further term of 3 years (total sentence of 6 years)
  • Eligible for parole from 30 August 2021; sentence to expire 30 August 2024

Key Takeaways

  • A sentencing judge's factual finding that is inconsistent with agreed facts constitutes a sentencing error, and the Crown's proper concession of that error enlivens the appellate court's duty to resentence.
  • Where the sentencing error concerns the quantity of drug imported, the error is directly material to the objective seriousness of the offence and the appropriateness of the sentence imposed.
  • Under s 307.11 of the Criminal Code (Cth), absolute liability applies to the element of commercial quantity, meaning the prosecution need not prove the accused knew the quantity met the threshold.
  • A prior conviction for a similar importation offence is a relevant aggravating factor on sentence, even where the earlier offending involved a different border-controlled substance.
  • An offender's intellectual disability and associated vulnerability to exploitation by others are mitigating factors that the sentencing court must weigh, including in determining the extent of community supervision required upon release.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.11(1)
- Crimes Act 1914 (Cth), Part 1B, s 16A
- Criminal Appeal Act 1912 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Clinch v The Queen (1994) 72 A Crim R 301
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Lee [2007] NSWCCA 234
- R v Le [2018] NSWDC 86
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14