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District Court 14 December 2021

R v Hung Quoc Nguyen

[2021] NSWDC 730

Drugs
SENTENCING — PENALTIES — IMPRISONMENT

Citation: [2021] NSWDC 730
Court: District Court of New South Wales
Date: 14 December 2021
Judge: Noman SC DCJ

Background

The offender, a 23-year-old man at the time of the offence, was sentenced following a guilty plea to one count of supplying a large commercial quantity of heroin on 1 July 2020. The offence arose from a controlled police operation in which undercover operatives negotiated a heroin purchase worth approximately $1.95 million from an organiser named Ngo. The offender's role was to physically deliver 6.9223 kg of heroin, contained in 20 separate bags inside a sports bag, to a designated hotel room.

The operation involved encrypted "Cipher" phone communications across a group chat. The offender was one of two individuals dispatched to the hotel room: a co-offender counted the money while the offender delivered the drugs. Both were arrested at the scene.

The offender gave evidence about his involvement, claiming he had not committed to participate until shortly before the delivery and was unaware of the full scale of the operation. The sentencing judge rejected this account as not credible.

  • What was the appropriate objective seriousness of the offending, having regard to the offender's role, the quantity and purity of the drug, and the involvement of others?
  • What weight should be given to the offender's personal circumstances, including age, traumatic background, substance abuse history, and prospects for rehabilitation?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the sentencing legislation.
  • What discount applied to reflect the timing of the guilty plea entered in the Local Court?

Decision

The court found that the offending fell well below the mid-range of objective seriousness. While the amount of heroin was well above the 1 kg large commercial quantity threshold and the drug was of high purity (72%), the offender played a lower-level delivery role and was exposed to detection. The principal organiser, Ngo, operated at a considerably more elevated level. The offender was to be paid only $1,000 for his participation.

The judge rejected the offender's evidence that his involvement was near-spontaneous and unplanned. The court found, beyond reasonable doubt, that the offender had been engaged at least 48 hours before the delivery, was provided with a Cipher phone, was part of the group chat, and knew he was to remain in the room to leave with Tang and the money. His role was trusted and essential to the operation, even if it ranked below others in the hierarchy.

On personal circumstances, the court accepted that the offender had experienced genuine childhood trauma, including an absent father, a neglectful home environment, and consequent drug and alcohol use. These deprivations informed his offending to a modest degree. The court also accepted a measure of remorse, despite rejecting his sworn evidence about the circumstances of his involvement. Given the offender's age of 23 at the time of offending, rehabilitation was accorded greater weight as a sentencing consideration.

A finding of special circumstances was made, reflecting the more restrictive conditions of custody during the COVID-19 pandemic (including limited visits, restricted program access, and extended time in cells), the fact that this was the offender's first period in custody, and the need for a longer period on parole to support drug abstinence. A 25% discount was applied for the early guilty plea.

Orders Made

  • The offender was convicted of supplying a large commercial quantity of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
  • Sentenced to 3 years imprisonment with a non-parole period of 2 years, commencing 1 July 2020.
  • Eligible for release to parole on 30 June 2022.
  • The statutory non-parole period ratio was varied to 66% to give effect to the finding of special circumstances.

Key Takeaways

  • A lower-level delivery role in a large-scale drug supply operation does not preclude a finding that the offender's participation was planned, trusted, and essential, particularly where the offender was provided with encrypted communications equipment and was engaged well in advance of the offence.
  • The District Court assessed objective seriousness as well below mid-range where the offender was a single-occasion courier acting under direction, was paid minimally, and was subordinate to a principal organiser operating at a higher level.
  • Where a sentencing judge rejects an offender's sworn account as not credible, findings adverse to the offender's version may still be made beyond reasonable doubt, affecting the court's assessment of the degree of planning and the true nature of the role.
  • Childhood trauma, substance abuse history, and COVID-related financial hardship can attract modest amelioration to sentence, though their weight is reduced where the offender's own evidence is found unreliable and where family members do not corroborate the claimed severity of those circumstances.
  • Special circumstances were established by reference to the particular hardships of remand custody during the COVID-19 pandemic combined with the offender's youth and first-time custody status, resulting in a non-parole period representing 66% of the total sentence rather than the standard two-thirds ratio.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of large commercial quantity of prohibited drug; maximum penalty: life imprisonment; standard non-parole period: 15 years)

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