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District Court 14 December 2021

R v Vang Vinh TANG

[2021] NSWDC 729

Drugs
SENTENCING — PENALTIES — IMPRISONMENT

Citation: [2021] NSWDC 729
Court: District Court of New South Wales
Date: 14 December 2021
Judge: Noman SC DCJ

Background

The offender was sentenced for two serious drug supply offences committed in 2020. He played a coordination role in a drug network organised by a principal named Hoang Ngo, who used encrypted "Cipher phones" to arrange transactions with undercover police operatives.

The first offence involved the supply of MDMA in a total quantity exceeding 5kg across two transactions in February 2020. The second offence, committed approximately five months later in July 2020, involved the offender attending a hotel room to count cash while a co-offender delivered 6.9223kg of heroin, for which the agreed price was $1.95 million.

The offender entered guilty pleas in the Local Court. Two additional offences, a minor MDMA supply from December 2019 and cannabis possession, were taken into account on a Form 1 (a procedure by which offences not separately charged are acknowledged by the court when passing sentence on the principal offences).

  • What was the appropriate reduction for guilty pleas entered at the Local Court stage?
  • Whether the offender was aware of the quantities of drugs involved in each supply (a disputed fact relevant to objective seriousness)
  • How to apply the standard non-parole period of 15 years as a sentencing guidepost for offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether an aggregate sentence was appropriate, and how to structure accumulation across two distinct offences
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence
  • The appropriate weight to give the offender's subjective case, including disputed claims about personal drug use history

Decision

The court found, beyond reasonable doubt, that the offender was aware of the quantities of drugs involved in each transaction. In both the MDMA and heroin supplies, group chat titles and monetary values referenced the quantities explicitly, and the court rejected the offender's denials. On the heroin supply, the court also found the price of $1.95 million was itself sufficient to indicate the offender would have appreciated the substantial quantity involved.

The objective seriousness of both offences was significant. The court noted the offender performed a coordination function, going beyond mere delivery. He was more involved than co-offenders Hermiz and Nguyen, and his prior drug offending weighed against him. The Form 1 offences, particularly the additional MDMA supply, reflected an extended period of criminal involvement and increased the need for personal deterrence.

A 25% discount was applied to each indicative sentence to reflect the timing of the guilty pleas. The court imposed an aggregate sentence, structuring the result to achieve an appropriate overall penalty while avoiding double punishment. Indicative sentences were: four years imprisonment (non-parole period of two years and eight months) for the MDMA offence, and three years and nine months imprisonment (non-parole period of two years and six months) for the heroin offence.

The court made a finding of special circumstances, citing the more restrictive custodial conditions experienced during the COVID-19 pandemic, including longer periods in cells, restricted visits, and limited access to rehabilitation courses. The court declined to extend supervision on the basis of drug dependency, as it did not accept the offender's account of his drug use history, but acknowledged there were other factors informing the offending that would benefit from extended supervision on parole.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate sentence of five years imprisonment was imposed, with a non-parole period of three years and four months.
  • The sentence commenced from 1 July 2020 (the date of arrest and entry into custody).
  • The offender became eligible for release to parole on 31 October 2023.
  • The non-parole period represents approximately 66% of the total sentence, reflecting the finding of special circumstances (the standard statutory ratio is 75%).

Key Takeaways

  • The District Court treated both the maximum penalty of life imprisonment and the standard non-parole period of 15 years under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) as legislative guideposts, not automatic outcomes, when calibrating sentence length.
  • A 25% guilty plea discount was applied where pleas were entered in the Local Court, reflecting the practical and systemic benefits of an early resolution.
  • Where a co-ordinator role in a drug supply network is established, the sentencing court will treat that level of involvement as more serious than that of a delivery driver or courier, even if the coordinator did not personally handle drugs on every occasion.
  • A finding of special circumstances can be grounded in the restrictive conditions of COVID-era custody, even where the court does not accept all elements of the offender's subjective case, such as claims of personal drug dependency.
  • Two discrete offences separated by five months, each involving distinct criminal acts and different drug types, called for some degree of accumulation in sentencing, balanced against the overall proportionality of the aggregate term.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of prohibited drug not less than large commercial quantity; maximum penalty: life imprisonment; standard non-parole period: 15 years)

Cases:
- No specific cases were cited in the text provided. The judgment references a "guideline judgment" in relation to Form 1 offences, but does not name it.