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Court of Criminal Appeal 25 September 2024

Nguyen v R

[2024] NSWCCA 178

Drugs
OFFENDER

Citation: Nguyen v R [2024] NSWCCA 178
Court: Court of Criminal Appeal, NSW
Date: 25 September 2024
Judge(s): Harrison CJ at CL, Ierace J, Faulkner J

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of a large commercial quantity of methylamphetamine (973g at 79% purity), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A second count of supplying an indictable quantity of cannabis (1,330g) was dealt with concurrently, along with a Form 1 offence of possessing ammunition without authority.

The applicant's role in the principal offence was to assist his co-offender, Edgar Michaels, in sourcing the drugs and to act as a lookout during the exchange with an undercover officer at a Bankstown Bunnings carpark on 2 June 2021. He received an aggregate sentence of 5 years and 5 months imprisonment, with a non-parole period of 3 years and 7 months.

The sole ground of appeal was parity. The applicant argued he had a justifiable sense of grievance when comparing his sentence to that of Khanh Loc Tran, an offender who had assisted Michaels in separate but similar drug supply transactions during the same police operation.

  • Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and that imposed on Tran, who had assisted a common co-offender (Michaels) in comparable drug supply offences
  • Whether the parity principle applies where the offenders were not co-offenders with each other, but each shared a common co-offender
  • Whether any disparity in non-parole periods was sufficient to ground a successful parity challenge

Decision

The Court of Criminal Appeal unanimously refused leave to appeal. Ierace J delivered the principal judgment, with Harrison CJ at CL and Faulkner J agreeing.

The court first addressed the threshold question of whether the parity principle can apply beyond direct co-offenders. Applying Jones v The Queen (1993) and Jimmy v R (2010), the court accepted that the principle is capable of extending to offenders who were not charged together but who participated in similar offences involving a shared co-offender. The inquiry remains whether an informed and unprejudiced observer would perceive the sentences as unjustifiably disparate.

On the facts, the court found no justifiable grievance. The applicant's indicative sentence for the principal offence was only marginally higher than Tran's, and this was explicable by the significantly greater objective seriousness of the applicant's offence. Contrary to one of the applicant's submissions, his aggregate sentence was in fact slightly lower than Tran's. The remaining disparity concerned the aggregate non-parole periods, which differed by four months (66% of the aggregate for the applicant against 59% for Tran). The court found this difference was attributable to legitimate distinctions, including that some aspects of Tran's subjective case were more favourable and that the applicant had shown reluctance to accept responsibility, as reflected in sentencing assessment reports.

The court concluded that a four-month difference in aggregate non-parole periods, explicable by the different subjective circumstances of the two offenders, did not cross the threshold of justifiable grievance required to enliven the parity principle.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • The parity principle is not confined to offenders who were jointly charged or sentenced together. It can extend to offenders who each participated in similar offences involving a shared co-offender, provided the comparison is meaningful and the circumstances are sufficiently analogous.
  • A justifiable sense of grievance requires more than a bare numerical difference in sentences. The comparison must account for differences in objective seriousness, subjective circumstances, and the extent of individual culpability.
  • Differences in non-parole periods attributable to the exercise of sentencing discretion, including findings of special circumstances, do not automatically generate a parity grievance: the variation of the statutory ratio under s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) remains a matter for the sentencing court's discretion, as confirmed in R v Pickard [2023] NSWCCA 7.
  • In dismissing the application, the Court of Criminal Appeal reinforced that an applicant's failure to demonstrate genuine remorse or acceptance of responsibility is a legitimate sentencing factor that can explain differences in outcomes between otherwise comparable offenders.
  • Where an applicant's aggregate sentence is in fact lower than the comparison offender's, a parity argument based on the aggregate sentence cannot be sustained.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2A)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Firearms Act 1996 (NSW), s 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Jones v The Queen (1993) 67 ALJR 376
- Kemp v R [2014] NSWCCA 153
- Lowe v The Queen (1984) 154 CLR 295; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295
- R v Edwards (1996) 90 A Crim R 510
- R v Pickard [2023] NSWCCA 7
- Rees v R [2012] NSWCCA 47