Citation: Nguyen v R; Pham v R [2025] NSWCCA 204
Court: Court of Criminal Appeal, New South Wales
Date: 1 December 2025
Judges: Ball JA, McNaughton J, R A Hulme AJ
Background
Two men were intercepted by NSW Police highway patrol on the Hume Highway in the early hours of 13 July 2024 while travelling north from Victoria toward Sydney. Police searched their van after detecting a strong smell of cannabis and discovered six shrink-wrapped cardboard boxes concealed beneath the floor. The boxes contained 99 freezer bags of cannabis leaf weighing 42.3 kilograms, nearly twice the statutory commercial quantity of 25 kilograms.
Both men had been paid $1,000 each to transport the drugs. Each accepted he knew he was carrying cannabis, though neither knew the precise quantity. No fingerprints or DNA from either man were found on the packaging, consistent with their roles as couriers rather than packers.
Each applicant was sentenced in the NSW District Court at Albury in February 2025, receiving three years and nine months' imprisonment with a non-parole period of two years. Both sought leave to appeal to the Court of Criminal Appeal on the sole ground that their sentences were manifestly excessive.
Legal Issues
- Whether sentences of three years and nine months (with a two-year non-parole period) for knowingly taking part in the supply of a commercial quantity of cannabis leaf were manifestly excessive under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed both appeals, finding that the sentences were well within the sentencing judge's discretion and were not unreasonable or plainly unjust.
McNaughton J (with Ball JA and R A Hulme AJ agreeing) applied the established principle that manifest excess is assessed by examining the overall result. The court weighed the applicants' genuine mitigating features, including their 25% discount for early pleas of guilty, absence of prior criminal histories, industriousness in custody, and positive rehabilitation prospects, against countervailing considerations.
On the other side of the ledger, the sentencing judge had found the offending was not at the lowest end of the scale, the applicants demonstrated limited insight into the community impact of their conduct, and each had at some point attempted to resile from their plea by denying knowledge of the drugs. The quantity involved was almost twice the commercial threshold, and the transportation was across state lines for financial reward.
The court also affirmed the importance of general deterrence in drug supply cases, citing Parente v R, which has recognised since at least the 1970s that a consistent deterrent message from sentencing courts is necessary given the covert nature of drug supply activity and its broader social consequences.
Orders Made
- Leave to appeal granted.
- Appeals dismissed.
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that sentences at the lower end of a range are not necessarily manifestly excessive simply because mitigating factors are present; those factors must be balanced against the objective seriousness of the offending and the weight given to general deterrence.
- A sentence of three years and nine months with a two-year non-parole period for couriers transporting 42.3 kilograms of cannabis leaf (nearly twice the commercial quantity) fell within the legitimate exercise of the sentencing judge's discretion.
- Where offenders attempt, even temporarily, to traverse their pleas of guilty after making early admissions, a sentencing court may treat this as reducing the weight attributable to remorse and insight.
- The Court of Criminal Appeal reaffirmed the principle from Parente v R that general deterrence carries significant weight in drug supply sentencing, given the covert nature of the conduct and its underlying contribution to other criminal offending.
- Under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), by entering a plea to supply of a commercial quantity, an offender accepts that the quantity falls within the relevant statutory range (here, 25 kg to 100 kg), as confirmed in Salameh v R [2024] NSWCCA 239.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33, Schedule 1
Cases:
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Moodie v R [2020] NSWCCA 160; 284 A Crim R 87
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Salameh v R [2024] NSWCCA 239