Citation: R v Victor Hoang Tran NGO [2022] NSWDC 271
Court: District Court of New South Wales
Date: 15 July 2022
Judge: Noman SC DCJ
Background
The offender was a participant in a drug supply network operating between late 2019 and mid-2020. He pleaded guilty to three offences: supplying 9.889 kg of MDMA (a large commercial quantity), offering to supply 118 kg of MDMA (also a large commercial quantity), and supplying 6.9223 kg of heroin (a large commercial quantity). A further offence of participating in a criminal group was taken into account on a Form 1 alongside the first count.
The offending arose from a police controlled operation involving two undercover operatives. The offender communicated primarily through encrypted CIPHR phones, negotiated directly with the undercover operatives, and organised others to carry out physical deliveries. An unknown figure identified as "OM666" was involved at an earlier stage, but the offender took over negotiations and continued them independently.
At the sentencing hearing, the offender gave evidence seeking to minimise his role by attributing significant direction and control to OM666. The court assessed that evidence against the agreed facts and found it largely implausible.
Legal Issues
- What was the offender's true role within the drug supply network, and what level of moral culpability and objective seriousness attached to each offence?
- How should the court weigh the offender's evidence about operating under direction from OM666?
- What discount applied to reflect the timing of the guilty pleas?
- Whether the Form 1 offence of participating in a criminal group warranted a sentencing adjustment.
- Whether special circumstances existed to justify a variation from the standard statutory non-parole period ratio.
- What weight should be given to the offender's mental health issues, drug use history, and rehabilitation progress?
Decision
Role and objective seriousness. The court rejected the offender's account that he acted almost entirely under OM666's direction. The agreed facts showed that within days of initial contact, the offender took over all negotiations directly. He referred to "my guys" and "my drivers," confirmed he would not need OM666's permission for future transactions, and conducted supply arrangements independently. The court found that his evidence seeking to diminish his role did not reconcile with the contemporaneous messages and was delivered by a witness with a demonstrated history of misleading courts. His moral culpability was assessed as substantial.
Plea discount and Form 1. A 25% reduction was applied to each indicative sentence to reflect the guilty pleas, which had been entered in the Local Court. The court accepted it was appropriate to take the criminal group participation offence into account on the Form 1, making a modest upward adjustment to count 1 to reflect that additional criminality.
Special circumstances. The court found special circumstances warranted an adjustment to the statutory non-parole period ratio. The relevant considerations were the more restrictive conditions of custody during the COVID-19 health response, the offender's mental health difficulties (which were exacerbated by the prospect of returning to custody), and his history of reoffending upon release. The court also noted concerns about the offender's deteriorating physical health in custody and directed that Justice Health be provided with suggested treatment plans. A longer parole period was considered appropriate given these factors.
Aggregate sentence. The court imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 5 months, reflecting a 60% ratio across the indicative sentences. Each individual indicative sentence was reduced by 25% for the guilty plea before being incorporated into the aggregate.
Orders Made
- Offender convicted of all three counts.
- Aggregate sentence of 9 years imprisonment imposed, with a non-parole period of 5 years and 5 months, commencing 20 March 2021.
- Eligible for release to parole on 19 August 2026.
- Indicative sentences: Count 1 (supply large commercial quantity of MDMA, including Form 1 matter): 7.5 years, NPP 4.5 years; Count 2 (offer to supply large commercial quantity of MDMA): 3 years, NPP 1 year 9 months; Count 3 (supply large commercial quantity of heroin): 6 years, NPP 3 years 7 months.
Key Takeaways
- A sentencing court may place limited weight on an offender's evidence about operating under a superior's direction where that account is inconsistent with contemporaneous encrypted communications and where the offender has a prior history of giving misleading accounts to courts.
- Under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), offences involving large commercial quantities of prohibited drugs carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years, both of which operate as legislative guideposts for assessing objective seriousness.
- The District Court confirmed that a guilty plea entered in the Local Court at an early stage attracted a 25% discount, even where one count had initially been incorrectly placed on a Form 1.
- Special circumstances were established on the basis of COVID-19 custody conditions, mental health vulnerability, and the offender's history of post-release reoffending, collectively justifying a longer parole period and a non-parole period ratio of 60%.
- Declining to name co-offenders or provide access to an encrypted device did not operate adversely against the offender in sentencing, as he was under no obligation to cooperate with police.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1)
Cases: No specific cases were cited in the judgment text provided.