AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 13 December 2024

Nguyen v R

[2024] NSWCCA 231

Drugs
SENTENCING OBJECTIVE SERIOUSNESS

Citation: Nguyen v R [2024] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 13 December 2024
Judges: Wright J (with Cavanagh J and Yehia J agreeing)

Background

The applicant pleaded guilty in the Local Court to four drug offences: two charges of supplying a large commercial quantity of heroin, one charge of supplying a commercial quantity of pseudoephedrine, and one charge of manufacturing more than the indictable quantity of methylamphetamine. Three further offences (two proceeds of crime charges and a drug manufacturing charge) were included on a Form 1 to be taken into account on sentencing. The offending occurred while the applicant was on parole for a 2011 sentence imposed for earlier large commercial drug supply.

On 3 July 2023, Bourke SC DCJ in the District Court imposed an aggregate sentence of 11 years and 6 months' imprisonment, with a non-parole period of 7 years and 6 months. The sentencing judge applied a 25% discount for early guilty pleas and indicated what the individual (indicative) sentences would have been had separate sentences been imposed.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge erroneously described him as a "trusted middleman" in a drug "hierarchy" without sufficient evidence of the hierarchy's details; and second, that the aggregate sentence was manifestly excessive because the individual indicative sentences were themselves excessive.

  • Whether the sentencing judge's characterisation of the applicant as a "trusted middleman" in a "hierarchy" was open on the evidence, given the absence of specific detail about the structure of that hierarchy.
  • Whether the indicative sentences for each offence were individually excessive.
  • Whether any individual excess in the indicative sentences rendered the aggregate sentence manifestly excessive, having regard to the degree of notional concurrency applied.

Decision

On the first ground, the Court of Criminal Appeal held that the sentencing judge's remarks, read fairly as a whole, did not disclose error. The use of the word "hierarchy" was the judge's attempt to describe the applicant's level of involvement in a meaningful way, placing him between the highest and lowest levels of drug criminality and "best described as a middleman." The findings that the applicant was a trusted participant in manufacture and supply were open on the available evidence.

On the question of whether the indicative sentences were individually excessive, the Court found they were not. The starting points before the 25% discount were consistent with the objective seriousness of the offending, the applicable sentencing principles, and the applicant's subjective circumstances. The Court noted that the applicant's subjective case did not contain factors markedly in his favour, and some factors pointed in the opposite direction.

The Court further held that, even if one or more indicative sentences had been excessive, it would not follow that the aggregate sentence was manifestly excessive. The indicative sentences for sequences 3, 18, and 19 (totalling 20 years and 6 months) added only 1 year and 6 months to the sequence 1 indicative sentence of 10 years, reflecting a very substantial degree of notional concurrency. The aggregate sentence was also made partially concurrent with the remainder of the applicant's earlier sentence following parole revocation.

The Court observed that the applicant's own counsel had conceded during oral argument that any downward adjustment on resentencing would have been very modest, and that the Court might have concluded no less severe sentence was appropriate. That concession reinforced the conclusion that the aggregate sentence was not unreasonable or plainly unjust. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's description of an offender as a "trusted middleman" in a drug "hierarchy" does not require granular evidence of the hierarchy's structure, provided the characterisation is a fair reflection of the offender's role as disclosed by the evidence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that individually excessive indicative sentences do not automatically render an aggregate sentence manifestly excessive, particularly where a substantial degree of notional concurrency has been applied.
  • Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999 (NSW), the ultimate question is whether the aggregate sentence, viewed against the totality of the criminality and all relevant circumstances, is unreasonable or plainly unjust.
  • Concessions by an applicant's own counsel at the appeal hearing that any resentencing adjustment would be very modest may reinforce a finding that the original sentence fell within the available range.
  • Offending committed while on parole for serious prior drug supply remains a significant aggravating feature, and partial concurrency with the parole-revocation period is a relevant consideration in the totality assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 53A(2)(b), 54A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 25(2)

Cases:
- DL v R [2020] NSWCCA 164
- DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2011] NSWCCA 194
- Du Plessis v R [2024] NSWCCA 164
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kemp v R [2014] NSWCCA 153
- Kurniawan v R [2017] NSWCCA 171
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Edwards (1996) 90 A Crim R 510
- R v Nguyen [2023] NSWDC 288