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District Court 25 March 2022

R v VUONG

[2022] NSWDC 224

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG LARGE COMMERCIAL QUANTITY SENTENCING AGGRAVATING FACTORS RECORD OF PREVIOUS CONVICTIONS

Citation: R v Vuong [2022] NSWDC 224
Court: NSW District Court
Date: 25 March 2022
Judge(s): Buscombe DCJ

Background

A police strike force established in December 2020 investigated methylamphetamine distribution across Sydney's south-west. Between January and March 2021, an undercover officer conducted eight controlled purchases from the offender, collectively totalling 915.88 grams of methylamphetamine at a consistently high purity of approximately 79 to 81 percent. The offender arranged each transaction by text message and Signal app, meeting the undercover officer near a Mount Pritchard address to exchange the drugs for cash.

The offender pleaded guilty to supplying a large commercial quantity of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) s 25(2). At the time of her arrest on 18 March 2021, she was found in possession of $7,050 derived from "buy money" used by the undercover officer. A further offence of dealing with proceeds of crime under the Crimes Act 1900 (NSW) s 193B(2) was placed on a Form 1 (meaning the court took it into account when sentencing, but no separate conviction was entered).

The offender was 55 years old at sentence. She had a prior conviction for a serious drug supply offence, for which she had been sentenced in 2013, and her parole from that sentence had been revoked as a consequence of the present offending.

  • Where on the scale of objective seriousness did the offence fall, given the quantity, purity, and the offender's role?
  • What weight should be given to the offender's subjective circumstances, including age, prior convictions, and guilty plea?
  • Whether and how to depart from the 15-year standard non-parole period applicable to the offence?
  • From what date should the sentence commence, given the offender was already serving the balance of a revoked parole order?

Decision

Buscombe DCJ assessed the objective seriousness of the offence as below a notional mid-range but not near the bottom of the range. The quantity supplied was nearly twice the large commercial quantity threshold, the purity was consistently high, the amounts per transaction increased over time, and some co-offenders were involved in sourcing the drug. The offender's role was characterised as a low-level wholesale supplier rather than a mere street dealer, as the quantities and purity exceeded what is commonly associated with street-level supply.

The court rejected any mitigating significance in the fact that the drug was sold to an undercover officer rather than entering the user market. While the Crown accepted the offender's role was less significant than that of her co-offenders, the offender bore direct responsibility for arranging and completing each transaction, assumed the associated risk, and acted for financial gain. The Form 1 offence involving the proceeds of crime was treated as having no independent impact on sentence, as the cash was essentially generated by the supply transactions already before the court.

On subjective matters, the offender's prior 2013 drug supply conviction was treated as a significant aggravating factor, requiring a specific deterrence component in the sentence. General deterrence was given considerable weight as a matter of principle in large commercial drug supply cases. The court departed downward from the 15-year standard non-parole period, attributing that departure to the below-midrange objective seriousness assessment and the guilty plea. The sentence was ordered to commence on the date of sentencing rather than at the expiry of the existing parole order, a matter within the court's discretion under Callaghan v The Queen.

Orders Made

  • Total term of imprisonment: 9 years
  • Non-parole period: 6 years (expiring 24 March 2028)
  • Balance of term: 3 years (sentence expiring 24 March 2031)
  • Sentence to commence 25 March 2022

Key Takeaways

  • The District Court confirmed that for large commercial quantity drug supply offences, both the quantity and purity of the drug are relevant but not determinative factors in assessing objective seriousness; the offender's role within the broader supply chain is equally significant.
  • A below-midrange finding on objective seriousness, combined with a guilty plea, can justify a departure downward from the 15-year standard non-parole period applicable under the Drug Misuse and Trafficking Act 1985 (NSW) s 25(2).
  • Where proceeds of crime found on an offender at arrest were generated by the same supply transactions forming the principal charge, the Form 1 offence may carry no additional weight on sentence.
  • A prior conviction for a substantially similar offence operates as a significant aggravating factor and requires specific deterrence to be reflected in the sentence, even where the offender's role in the current offending is assessed as relatively subordinate.
  • Under Callaghan v The Queen, a sentencing court retains a discretion as to the commencement date of a new sentence where the offender is already subject to a parole order that has been revoked as a consequence of the fresh offending.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 47

Cases
- Callaghan v The Queen (1952) 87 CLR 115
- Mitchell v R [2021] NSWCCA 306
- Valetta v R [2021] NSWCCA 208