Citation: R v Nguyen [2022] NSWDC 735
Court: District Court of New South Wales
Date: 9 December 2022
Judge: Colefax SC DCJ
Background
The offender, a 26-year-old man who had migrated from Vietnam to Australia at age 16, pleaded guilty to supplying a prohibited drug in a quantity greater than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge arose from events in May 2021, when he was 24 years old.
The offender's role was that of a "warehouseman." He rented a storage unit at a facility in Chipping Norton using his own name and credit card, arranged a hire vehicle to transport the drugs, and assisted in unloading ten boxes of cannabis, totalling 93.503 kilograms, into the storage unit. The estimated street value of the cannabis was between $900,000 and $1.8 million. He was offered $2,000 per week by the organiser for what was expected to be up to three to four months of storage, representing potential earnings of approximately $32,000.
The offender was arrested on 18 May 2021 after staff at the storage facility detected a strong smell of cannabis and contacted police. He remained in custody for 107 days before being granted bail in September 2021. He initially told the author of the sentencing assessment report that he was to receive only $500 for his involvement, a claim the court rejected as false.
Legal Issues
- What was the appropriate objective seriousness of the offending, given the offender's role as a warehouseman rather than an organiser?
- What subjective factors were relevant to sentence, including age, family circumstances, and prospects of rehabilitation?
- What discount applied to the sentence in light of the guilty plea, and at what stage was that plea entered?
- Whether special circumstances existed to justify reducing the non-parole period below the standard 75% ratio.
Decision
The court found the objective seriousness of the offending to fall "equidistant between the middle and the bottom of the range" for an offence of its kind. The offender's role was not insignificant: he had stored a very large quantity of cannabis and was prepared to do so for up to four months in exchange for substantial payment. The court noted it harboured considerable suspicion that the full truth had not been told, but declined to speculate adversely beyond finding the offender's intended role was at least that of warehouseman.
On the question of the guilty plea, the court found the offender was entitled to only a 10% utilitarian discount. The plea was entered on the morning of the scheduled trial date, after the charge was negotiated down from supply of a large commercial quantity to supply of a commercial quantity and the alleged drug weight was halved. The essential Crown case otherwise remained unchanged, and the plea came very late in the proceedings.
The court considered limited subjective evidence, including the offender's age, his status as a first-time offender in custody, his wife's health condition, and his young son's medical needs. These factors did not displace the need for a custodial sentence, but they did support a finding of special circumstances to reduce the non-parole period from the standard 75% of the head sentence down to 50%.
The court sentenced the offender to a base term of three years' imprisonment, reduced by 10% to two years and eight months. Special circumstances justified a non-parole period of one year and four months, with a matching balance of parole of one year and four months. The sentence was backdated by 107 days to account for pre-sentence custody.
Orders Made
- Total term of imprisonment: two years and eight months, backdated by 107 days to 24 August 2022.
- Non-parole period: one year and four months, commencing 24 August 2022 and expiring 23 December 2023.
- Balance of sentence (parole period): one year and four months, commencing 24 December 2023 and expiring 23 April 2025.
Key Takeaways
- A warehouseman's role in a large-scale drug supply operation is not automatically minor: where the quantity is significant and the intended duration of storage is substantial, the objective seriousness remains meaningful even without evidence of a higher organisational role.
- Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty is 15 years' imprisonment and no standard non-parole period applies, leaving the sentencing court with considerable discretion in fixing the non-parole period.
- A guilty plea entered on the day of trial, following charge negotiations that preserved the essential Crown case, attracted only a 10% utilitarian discount rather than a more generous allowance.
- Special circumstances reducing the non-parole period below the standard 75% ratio were established by a combination of factors: the offender's young age, his status as a first-time prisoner, enhanced rehabilitation prospects on parole, and the particular hardship imprisonment would impose given his family situation.
- Providing false information to the author of a sentencing assessment report will be identified and taken into account by the sentencing court when assessing the credibility of the offender's overall account.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply prohibited drug greater than commercial quantity)
Cases cited: No cases were cited in the judgment.