Citation: R v Nguyen [2023] NSWDC 288
Court: District Court of New South Wales
Date: 3 July 2023
Judge: Bourke SC DCJ
Background
The offender faced sentencing on four substantive drug offences arising from two separate police operations conducted in late 2021 and early 2022. The offences included two counts of supplying a large commercial quantity of heroin, one count of supplying a commercial quantity of pseudoephedrine, and one count of manufacturing methylamphetamine above the indictable quantity.
The first cluster of facts concerned a clandestine drug laboratory discovered at a residential address in Canley Heights in October 2021, where approximately two kilograms of pseudoephedrine was seized. Evidence linked the offender to that address through surveillance observations and GPS data from internet banking activity, and an intercepted message in which the offender acknowledged losing "two sudo" after police publicised the seizure.
The second cluster concerned a house in Allawah, where the offender and a co-offender were observed attending overnight in January 2022. On departure, the offender was stopped by police in Hurstville carrying a backpack containing approximately 1.4 kilograms of heroin across four blocks. Police subsequently searched the Allawah premises and found an active clandestine laboratory, large quantities of prohibited drugs, and significant drug manufacturing equipment. The offender also asked that three further offences be taken into account on a Form 1 document: two counts of dealing with suspected proceeds of crime (totalling approximately $150,000 in transactions) and one count of manufacturing methamphetamine.
Legal Issues
- What weight to give the offender's early guilty plea in calculating the sentencing discount
- Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period
- How to structure and impose an aggregate sentence across four substantive offences of varying gravity
- Whether, and to what extent, to backdate the sentence to give credit for time already spent in custody
Decision
The court applied a 25% discount to all sentences to reflect the utilitarian value of the offender's early guilty pleas. The court treated the standard non-parole periods for the two large commercial heroin supply offences (each 15 years, against a maximum of life imprisonment) as important guideposts. The standard non-parole period for the pseudoephedrine supply offence was 10 years, against a maximum of 20 years.
The court declined to impose any sentence other than full-time imprisonment. It found no basis for a wholly or partly suspended sentence or any non-custodial alternative, given the serious nature of the offences.
The court found special circumstances existed to justify a longer-than-standard ratio of head sentence to non-parole period. The reasons included qualified positive findings about the offender's rehabilitation prospects, the need for extended community supervision, the risk of institutionalisation from a lengthy sentence, the added hardship of imprisonment during the COVID-19 pandemic, and the offender's untreated grief following the death of his wife.
On backdating, the court exercised its discretion to partially credit time already served in custody. Rather than backdating from the date of arrest (27 January 2022) as the offender sought, the court backdated from 15 October 2022, giving the offender credit for approximately half the period spent in custody to that point. The court noted that the offender had been serving revoked parole during part of this period, which informed the exercise of that discretion.
Orders Made
- An aggregate sentence of 11 years and 6 months imprisonment was imposed.
- A non-parole period of 7 years and 6 months was set.
- The sentence was backdated to commence on 15 October 2022 (a reduction of 261 days, representing approximately half the period spent in custody at the time of sentence).
- The head sentence expires on 14 April 2034; the non-parole period expires on 14 April 2030.
Key Takeaways
- The District Court applied a 25% sentencing discount for early guilty pleas across all four substantive offences, treating that utilitarian value as a significant but not determinative factor in the overall sentencing exercise.
- Standard non-parole periods for serious drug supply offences function as guideposts rather than fixed benchmarks, and the court departed from them where justified by the totality of the offender's circumstances.
- A finding of special circumstances can be supported by a combination of factors, including rehabilitation prospects, risk of institutionalisation, pandemic-related hardship in custody, and personal grief, even where rehabilitation findings are only "qualified."
- Backdating to give full credit from the date of arrest is not automatic where the offender was simultaneously serving revoked parole; the court retained a discretion to award only partial credit.
- Form 1 offences, including large-scale proceeds of crime transactions and drug manufacturing, were taken into account in setting the indicative sentence for the principal offence to which they were annexed, reflecting the broader criminality before the court.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney-General's Application under s 37 CSPA 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
- R v Edwards (1996) 90 A Crim R 510