Nguyen v R; Pham v R

File Number(s): 2024/00258519 (Nguyen v R)
2024/00258520 (Pham v R)

Publication restriction: Nil

JUDGMENT

1. Ball JA: I agree with McNaughton J.

2. McNaughton J: The applicants seek leave to appeal against their sentences. They were sentenced by her Honour Judge English (the sentencing judge) on 12 February 2025 at the New South Wales District Court sitting at Albury.

3. Each applicant was sentenced for a single offence of knowingly take part in the supply of a commercial quantity of cannabis leaf contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The maximum penalty for the offence is 15 years (s 33(2)(b) DMT Act) and there is no standard non-parole period. A commercial quantity of cannabis leaf is 25kg (Schedule 1 DMT Act). The amount of cannabis involved in the offending was 42.3kg.

4. The applicants were each sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years. They both seek leave to appeal on a single ground contending that their sentence is manifestly excessive.

Sentencing proceedings

5. For each applicant, the Crown tendered the Statement of Agreed Facts and a Sentence Assessment report prepared by a Community Corrections officer, as well as material showing neither had a criminal history.

6. The defence tendered a letter from the wife of each of the applicants, and in the applicant Mr Nguyen’s case, also from a friend.

Remarks on sentence

7. The applicants were each sentenced on the basis of identical statements of agreed facts of one page in length. As reflected by the sentencing judge in her remarks on sentence, the agreed facts disclosed that at about 8pm on 12 July 2024, the applicants left the suburb of Burnside in the state of Victoria in a white Toyota Hi-Ace van with Victorian registration. The applicant Mr Pham was the driver and Mr Nguyen the passenger. The Crown made it clear in its written submissions that nothing flowed from their positions in the vehicle. The intended destination was Sydney. At the time the applicants knew that the delivery involved transporting cannabis leaf but they were not aware of the quantity.

8. At 11.30pm on 12 July 2024, the vehicle was stopped for the purpose of random testing by members of the New South Wales police highway patrol unit whilst travelling north along the Hume Highway at Mullengandra. A strong smell of cannabis was detected by police resulting in the vehicle being searched.

9. In the vehicle, underneath some flooring, police located six shrink wrapped cardboard boxes. One of the boxes was opened and police observed a number of freezer bags containing cannabis leaf.

10. During a forensic procedure, the applicant Mr Pham volunteered to police that he and the applicant Mr Nguyen were paid $1000 each to make the delivery and that “I just drive the people to carry the stuff for them”**. The applicant Mr Nguyen similarly stated, “I don’t know because uh the people ask me to u**h deliver it so*,* I just do*,* uh what they told me*”**.*

11. The vehicle was seized, and the six boxes were forensically examined and the drug analysed. There were 99 freezer bags of cannabis leaf in total weighing, as noted above, 42.3 kilograms. Neither of the applicants’ DNA nor their fingerprints were located on any of the drug packaging.

12. As to their subjective features, the sentencing judge first turned to the applicant Mr Nguyen. Her Honour noted he was 43 years of age and held a criminal detention bridging visa which meant that on release he would be subject to immediate immigration detention. He had limited support in the Australian community, with his wife and two children living in Vietnam. He was employed as a farmhand in Victoria and at the time was applying for a bridging visa.

13. Her Honour found that when interviewed by Community Corrections he in effect traversed his plea by stating he was not aware that he was transporting drugs, rather just “merchandise.” He expressed regret for his current circumstances but took no responsibility for his offending, blaming his limited language proficiency for his involvement. He was financially motivated to offend in order to send money home to Vietnam to support his family. He demonstrated some insight into the impact of illicit drugs on the community. He was willing to engage in rehabilitation programs and was assessed as a medium/low risk of offending.

14. A letter from the applicant Mr Nguyen’s partner in Vietnam was tendered. The letter set out that his incarceration and inability to provide income has had a significant effect on her and their children, as well as on the applicant Mr Nguyen’s elderly parents. A letter from a friend of the applicant Mr Nguyen set out an offer of support and accommodation on release.

15. The sentencing judge then turned to the applicant Mr Pham. He was also interviewed by Community Corrections and was of a similar background to the offender Mr Nguyen, with a similar motivation to offend. The sentencing judge noted that the applicant Mr Pham maintained he had no knowledge of the illicit substances, rather he was transporting an unknown item between locations. He too expressed limited insight into the impact of his offending on the community and her Honour noted that Community Corrections was of the opinion that any remorse or regret was self-focussed. The applicant Mr Pham also expressed a willingness to engage in rehabilitation programs and was assessed as a low risk of reoffending.

16. The applicant Mr Pham’s wife provided a letter setting out her poor health, the poor health of his mother and that there were children to support.

17. Her Honour then returned to the offence itself and found that although the applicants did not know the quantity of the drug, they willingly engaged in the transportation of a significant quantity of cannabis from Victoria to New South Wales for financial reward. Her Honour noted the amount was almost twice the commercial quantity.

18. Her Honour further found that cannabis is not a harmless drug and can have serious consequences for the mental health of particularly vulnerable people, including increased episodes of psychosis in those with schizophrenia or bipolar disorder as well as other consequences.

19. The sentencing judge found that the applicants were couriers “in every sense of the word” and were fully aware of what they were transporting. They were prepared to take the risk even if it was for a small financial reward. Her Honour found the level of offending was low but “certainly” not at the lowest end of the scale, also observing that the payment received was “modest”. Her Honour found there were no factors of aggravation.

20. The sentencing judge found that the applicants entered their pleas at the earliest opportunity and afforded them the full 25% discount. The sentencing judge also found they demonstrated contrition but had limited insight into the impact of their offending on the community. The sentencing judge found they were certainly aware of the consequences for themselves and their families.

21. Neither of the applicants had criminal histories which was noted by the sentencing judge as “not unheard of in cases such as this”. The sentencing judge found that, typical of many such offenders, they were “lured to [commit this offence] for financial reward”.

22. Her Honour stated that it was “difficult to sever remorse from self-interest and that is because despite making immediate admissions to police and entering pleas of guilty they subsequently attempted to traverse their pleas, although ultimately they have adhered to those pleas.”

23. The sentencing judge found they were entitled to leniency due to their lack of prior criminal history and they both had good prospects of rehabilitation. Her Honour found they had both been using their time productively whilst in custody and that they were unlikely to reoffend in this way again.

24. The sentencing judge found that general deterrence had a significant role to play in any penalty to be imposed and that specific deterrence was adequately addressed by the time they will spend in custody. Only a fulltime custodial penalty would suffice with her Honour stating:

“A message must be sent to the community that knowingly taking part in the supply of prohibited drugs is a serious offence and when offenders are detected they will face significant custodial penalties when brought before Courts.”

25. Her Honour found special circumstances based on both applicants being in custody for the first time, with language difficulties and no community support in Australia.

26. As to the hardship to their families, the sentencing judge found that it was not greater than that suffered by many families when the breadwinner was in custody and the hardship encompassed shock, shame, embarrassment and financial hardship.

Consideration

27. The principles applicable to a complaint that a sentence is manifestly excessive are well known. They were collected by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

28. As to the use of other sentences and statistics in support of a contention of manifest excess, in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42], Bell P (Gleeson and McCallum JJA agreeing) observed that:

“Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39];

Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and

Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

29. It first can be accepted that her Honour found that the objective seriousness of the offending as well as the subjective cases of the applicants were relevantly identical. Her Honour drew no distinction between the two applicants, and no issue is taken on their behalf in this Court as to the correctness of that approach. The correctness of her findings also was not disputed.

30. In contending that their sentences are manifestly excessive, the applicants point not only to their early pleas but also to the findings that the objective seriousness of the offending was low, that they had a low risk of reoffending and also generally favourable prospects of rehabilitation. Whilst the applicants concede general deterrence has “some relevance” it is not, they submitted, “to the extent to which her Honour had regard”.

31. The applicants also referred to statistics from the Judicial Commission of NSW and submitted that the head sentence and non-parole period imposed appeared to fall above the penalties imposed in the majority of cases included in the statistics. In my view, this is an example of the use of statistics failing to supply the “granularity necessary for critical appraisal of the closeness of cases presented as ‘like’ or ‘similar’ or ‘comparable’”: Moodie v R [2020] NSWCCA 160; 284 A Crim R 87 at [88] (per Bell P, Davies and N Adams JJ agreeing). I do not find the statistics assist the applicants’ argument.

32. The applicants have failed to persuade me that the sentences imposed were manifestly excessive. Whilst it was accepted by the sentencing judge that the applicants were not aware of the quantity of the drug in their vehicle, her Honour found that the applicants willingly engaged in the transportation interstate of a significant quantity of cannabis. By their plea the applicants accepted that the quantity of drug was in the order of 25kg – 100kg (the quantity which the law identifies as a commercial quantity of cannabis leaf): Salameh v R [2024] NSWCCA 239 at [30], [126].

33. Whilst the applicants received a 25% discount due to their early pleas of guilty and had the benefit of positive findings based on their lack of criminal history, their industriousness in custody and their positive prospects of rehabilitation, these matters need to be balanced against less positive aspects. Whilst the offending was at the low end of the range, it was nonetheless a serious offence, the objective seriousness being found by her Honour as not being at “the lowest end of the scale”. The sentencing judge also found that the applicants had limited insight and attempted, at one point, to resile from their pleas.

34. Further, as noted in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]-[110]:

“Since at least the 1970s […] there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.”

35. Whether a sentence is manifestly excessive is a conclusion based on an examination of the result. In all of the circumstances, including taking into account the maximum penalty, the objective seriousness of the offending, the importance of general deterrence and protection of the community, together with comparatively unremarkable subjective features, the applicants have failed to satisfy me that the sentences imposed were unreasonable or plainly unjust. Rather, in my view, the sentences imposed on the applicants were well within the discretion of the sentencing judge.

36. The ground of appeal is not made out.

37. The orders I propose are:

38. Grant leave to appeal.

39. Dismiss the appeal.

40. R A Hulme AJ: I agree with McNaughton J.

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