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District Court 28 June 2021

R v Nguyen and Tran

[2021] NSWDC 576

Drugs
CRIME SENTENCE PARITY

Citation: R v Nguyen and Tran [2021] NSWDC 576
Court: District Court of New South Wales
Date: 28 June 2021
Judge: Bourke SC DCJ

Background

Two co-offenders, referred to here as the manufacturer-supplier and the plea offender, were sentenced for their roles in an active methylamphetamine laboratory operating from a residential property in Chipping Norton, Sydney. Police surveillance in January 2019 led to the execution of a search warrant, which revealed an operational drug lab, substantial quantities of methylamphetamine in crystal and liquid form, and precursor chemicals including acetone, xylene, and hydrochloric acid.

The manufacturer-supplier (Nguyen) faced two charges: supplying a commercial quantity of methylamphetamine (408 grams) and manufacturing not less than the large commercial quantity of methylamphetamine (4,803 grams). He was convicted by a jury after a defended trial, so no plea discount applied. The plea offender (Tran) faced a single charge of manufacturing not less than the large commercial quantity of methylamphetamine, with an additional supply offence placed on a Form 1 document to be taken into account on sentence. Tran entered a guilty plea immediately before his scheduled trial, attracting a 5% discount.

The facts were largely agreed. All four people present at the premises were found to have joint possession of the 408 grams of crystal methylamphetamine discovered in bedroom five. The total crystal methamphetamine located in the house was approximately 441 grams, and the total liquid form approximately 132 grams.

  • What sentences were appropriate for each offender, having regard to the maximum penalties and standard non-parole periods for commercial and large commercial quantity drug offences?
  • How should the court treat the difference in culpability between an offender convicted after trial and one who pleaded guilty shortly before trial?
  • Was parity between the sentences of the two co-offenders maintained, given the different charges faced and the differing procedural histories?

Decision

Bourke SC DCJ approached sentencing by treating the maximum penalties and standard non-parole periods as important guideposts. The offence of manufacturing not less than the large commercial quantity of methylamphetamine carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The supply of a commercial quantity carries a maximum of 20 years and a standard non-parole period of 10 years.

Nguyen, convicted at trial, received an aggregate sentence of five years and ten months, with a non-parole period of four years. His sentence was backdated to 24 January 2019, the date of his arrest. The head sentence was set to expire on 23 November 2024, with eligibility for parole consideration from 23 January 2023. The court took into account that Nguyen had completed a Remand Addictions programme during his time in custody, a matter documented by Corrective Services and formally received into evidence on sentence.

Tran received a sentence of five years and eight months after the 5% plea discount was applied, with a non-parole period of three years and four months. His sentence was backdated to 26 November 2019, reflecting a later arrest date. The head sentence was set to expire on 25 July 2025, with parole eligibility from 25 March 2023. The slightly shorter head sentence and significantly shorter non-parole period for Tran reflected both the plea discount and the different profile of charges, while maintaining overall parity with Nguyen's sentence.

Orders Made

  • Nguyen: aggregate sentence of five years and ten months, non-parole period of four years, commencing 24 January 2019; head sentence to expire 23 November 2024; parole eligibility from 23 January 2023.
  • Tran: sentence of five years and eight months (after 5% plea discount), non-parole period of three years and four months, commencing 26 November 2019; head sentence to expire 25 July 2025; parole eligibility from 25 March 2023.
  • Tran's additional supply offence was taken into account pursuant to the Form 1 procedure rather than sentenced separately.

Key Takeaways

  • A guilty plea entered immediately before the commencement of a scheduled trial attracted a discount of only 5% under the Crimes (Sentencing Procedure) Act 1999, reflecting the lateness of the plea.
  • Maximum penalties and standard non-parole periods for serious drug manufacturing offences (life imprisonment and 15 years respectively for large commercial quantities) served as significant reference points in the sentencing exercise, not merely as theoretical ceiling figures.
  • Parity between co-offenders was maintained despite different charge profiles and procedural histories: the court calibrated each sentence to reflect the individual circumstances while producing comparable overall outcomes.
  • Participation in a custodial rehabilitation programme (here, a Remand Addictions programme) was treated as a relevant mitigating consideration, formally documented and received into evidence at the sentencing hearing.
  • Where an additional offence is placed on a Form 1 document, it is taken into account in setting the sentence for the principal offence rather than being the subject of a separate penalty.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
No cases were cited in the provided text of the judgment.