District Court New South Wales Medium Neutral Citation: R v Trinh [2011] NSWDC 140 Hearing dates: 4 March 2011 Decision date: 04 March 2011 Jurisdiction: Criminal Before: Gibson DCJ Decision: The offender is sentenced to a term of imprisonment of five years with a non-parole period of two years and nine months. Catchwords: CRIMINAL LAW - sentence - supply of prohibited drug greater than the traffickable quantity and not less than the commercial quantity Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 47(2), 48(1) and Pt 4 Div 1A Drug Misuse and Trafficking Act 1985 (NSW), s 25 and Schedule 1 Cases Cited: Lorraway v R [2010] NSWCCA 46 Mulato v Regina [2006] NSWCCA 282 R v Blair [2005] NSWCCA 78 R v Clark, New South Wales, Court of Criminal Appeal, unreported, 15 March 1990 R v Clark (1997) A Crim R 585 R v Colledge [2010] NSWCCA 302 R v Shi [2004] NSWCCA 135 Regina v Misiepo [2005] NSWCCA 405 The Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2004] NSWCCA 303; (2004) NSWLR 305 Vu v Regina [2006] NSWCCA 188 Texts Cited: - Category: Sentence Parties: Joseph Nguyen Trinh Representation: Mr Kiru - Crown Mr Turnbull SC - File Number(s): 2010/112625 Publication restriction: None Judgment 1Joseph Nguyen Trinh has pleaded guilty to supplying a prohibited drug, namely 698.9 grams of methylamphetamine. This is an amount greater than the traffickable quantity of and not less than the commercial quantity in accordance with Schedule 1 Drug Misuse and Trafficking Act 1985 (NSW) and is an offence against s 25(2) Drug Misuse and Trafficking Act for which the maximum penalty is 20 years and/or 3,500 penalty units, with a standard non-parole period of 10 years. 2There is in addition a Form 1 charge, namely supply of a prohibited drug (8.6g of cocaine) (s 25(1) Drug Misuse and Trafficking Act ). 3The offender was arrested on 5 May 2010 following execution of a search warrant at premises he was occupying. 4The facts of the offence (which I have summarised from the material set out in Exhibit A, and from information given in the oral evidence of the offender in this court) are as follows. On 5 May 2010, police executed a search warrant at premises occupied by the accused and found the offender at the top of the stairs opposite a bedroom door which was closed and locked. They kicked in the door and found the co-offender sitting on the bed. Police observed small piles of pink-coloured pills, a pile of resealable plastic bags and 10 resealable plastic bags containing white powder. 5The offender was arrested and cautioned and conveyed to the police station. Later that same day he was conveyed back to the premises the subject of the search warrant, and a search o the premises was conducted in his presence. Police seized 285 pink-coloured pills sorted into bunches, 10 resealable bags containing white powder and a further 3,277 pink-coloured pills separated into three resealable plastic bags, as well as some other items such as an open packet of glucose powder and items of paperwork. 6There is a certificate of analysis by Sydney West Area Health Service noting that 21.4 g of the pink tablets were tested and that the drug purity was 1.5%. The remaining 60.5g of pink tablets were not tested. The white powder tested was found to be cocaine with a purity of 48%; this is the subject of the Form 1 charge. 7The offender, who has remained in custody on this matter since 5 May 2010, pleaded guilty at the first opportunity. Subjective Facts 8The subjective circumstances, all of which I have taken into account, are contained in a psychologist's report and references which have been tendered on the offender's behalf. The offender has also given evidence. 9The offender was born on 18 January 1984 and is 27 years of age. Although born in Australia, his parents fled to Australia from Vietnam by boat just before he was born, and while his mother was pregnant with him. Although growing up in Australia, his family appeared to have suffered the difficulties of refugee families starting a new life in a foreign country. The offender's early family life was difficult, as his mother had a gambling problem, and he was essentially raised by his grandparents. The dysfunction in his family is described in a reference from the principal of the school his younger brother attended. 10Despite not completing his schooling, the offender took on a hairdressing apprenticeship, completing his training over four years, and the salon owner who employed him for four years has, in a written statement to the court, provided details of his ability and hard work as well as of his character. 11From the age of 18 the offender was in a steady relationship with a young woman who is also a hairdresser and had a close relationship with her family. She was present when the search warrant was executed and also arrested. Her relationship with the offender has now ended. 12Although being gainfully employed and having the stability of a steady relationship, the offender used drugs and developed a gambling habit during this period. 13The offender gave evidence that the events which led to his arrest were the first time he had participated in drug supply activities. He received the large bags of pills for the purpose of dividing them into separate bags, after which he was to return them to this person for the purpose of sale to third parties. He was to receive $5,000 for his role, which consisted of a few hours' work. Asked how he had come to participate in this transaction, he said he was approached by a man whom he knew from his own drug-taking activities. This man offered him $5,000 if he would perform this task. The offender's gambling and drug use problems meant that despite full-time employment as a hairdresser he was desperate for money, and he agreed. 14A report dated 2 February 2011 by Anna Robillard, a psychologist, describes the offender's family background and early years, and how these drug and gambling problems developed. The dysfunction in the offender's family life when he was young and the impact of being exposed to entrenched addictive behavior because of his mother's gambling impacted upon him, and she diagnoses the offender as suffering from Substance Dependence Disorder requiring relatively intensive rehabilitative treatment. 15Ms Robillard describes the regret and remorse the offender expressed to her for his offending, his desire never to use drugs again and his wish for a stable family lifestyle (at p.11 of her report). The offender expressed his remorse to the court both in a letter to the court and his oral evidence, and there is evidence of contrition. His attempts at rehabilitation are limited at present by his being in Remand, but I am satisfied by the material tendered and his evidence that he has good prospects of rehabilitiation. References provided by responsible members of the community and by the Parklea Anglican chaplain and two teachers from the Education Section confirm this. 16Mr Turnbull SC submitted that the facts demonstrate the offender's role was a low level involvement. The Crown for the Crown agreed that the conduct was some way below the mid-range of seriousness, but did not agree that it was low level. I am satisfied that the involvement was toward the bottom of the scale, and approaching low level, because it was not initiated by the offender, it was the first time he had taken part in any such transaction, and his role was to count and pack the items, a task which would take a few hours and after which the drugs would be collected from him, a low-level task. He earned a flat fee, not a percentage of the profits, and his role was that of possession for a short duration, dividing up the pills and delivering them, in circumstances where he was responding to instructions from those higher up the chain without knowledge of the larger picture. Although the evidence falls short of suggesting he was prevailed upon, his financial desperation, and the circumstances in which he was approached by a person who knew of his drug dependence, is of relevance. 17Mr Turnbull SC drew my attention to the offender's motivation for involvement arising from his ongoing drug and gambling problems and personal circumstances, including his age and pre-existing good work record. I accept and take these factors into account. As already indicated, I also accept that there is evidence of contrition and that his prospects for rehabilitation, according to the references and report tendered, and his own evidence, are good, and he is unlikely to reoffend. 18The offender has a previous criminal record relating to a goods in custody charge in 2002, for which he was sentenced to bonds of 6 and 12 months. He was 18 at the time. These offences are unrelated to the conduct for which he is presently before the court. Apart from a traffic matter he has no other criminal record. His record does not disentitle him to leniency. 19Offences relating to the supply of illegal drugs are matters of objective seriousness, and the objective criminality has an important impact on the overall sentencing outcome. The courts and the legislature have recognized that in assessing the objective seriousness of drug offences, especially drug supply, regard should be had to the drugs' potential for harm in both direct and indirect ways, in that drug dealing does not simply dispense illegal drugs but is, at every level, associated with criminal conduct, and leads to other forms of crime . Sentencing principles require the court to deter the commission of serious crime and punish those who commit it, but there are other objectives which the sentencing process must seek to achieve, and paramount amongst these is the achievement of justice in the individual case: R v Clark (1997) A Crim R 585 at 590 - 1; R v Colledge [2010] NSWCCA 302. 20The quantity of the drugs is an ingredient in the offence and, while not the only factor in assessing objective seriousness, remains a significant factor. The quantity of drugs the subject of this charge (698.9 grams) is very high. Other factors include the offender's role in the transaction, which I have found to be at the low end of the scale. I am satisfied beyond reasonable doubt that the offender was trafficking in a substantial quantity of drugs. 21When fixing a sentence, which must be a custodial sentence ( R v Clark , New South Wales, Court of Criminal Appeal, unreported, 15 March 1990), I note that the Crown agrees that there are special circumstances (s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW)) for reducing the non-parole period below three-quarters of the term of the sentence. Those factors include the offender's good prospects of rehabilitation, the fact that it will be his first time in prison, his prior work record and motivation for the offence, and the recommendation of the psychologist of the need for the offender to address his gambling and addiction problems. I propose to make the finding of special circumstances and to return to this issue in more detail towards the end of these remarks on sentence. 22The Crown concedes that the plea was entered at the earliest opportunity and should therefore attract the maximum utilitarian discount of 25%. I also note that the sentence should be backdated to 5 May 2010, which I propose to do. 23In addressing the standard non-parole period for this offence, which is 10 years (Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 (NSW)), I note the submissions of both the Crown and Mr Turnbull SC that standard non-parole periods are to be taken as having been intended for a middle-range case of objective seriousness where the offender was convicted at trial ( Vu v Regina [2006] NSWCCA 188). Following a plea of guilty, it should be regarded, by reference to sentencing after a plea, as a reference point, sounding board or guidepost ( Regina v Misiepo [2005] NSWCCA 405 at [43] per Simpson J; R v Shi [2004] NSWCCA 135; Mulato v Regina [2006] NSWCCA 282 at [11] - [25]). I am satisfied that the facts place the offence below the middle range of objective seriousness and at the low end of the range. 24While I have taken all of the matters put before me concerning special circumstances into account, there is one matter I should specifically deal with. Mr Turnbull SC submitted I should take into account is the comparatively low purity of the drug content in the pills ( R v Blair [2005] NSWCCA 78; Mulato v Regina [2006] NSWCCA 282 at [34]). The Crown submits this is irrelevant, and has drawn my attention to McClellan CJ at CL's statements in Lorraway v R [2010] NSWCCA 46 at [32] - [33]. McClellan CJ does, however, go on to note that the purity of the drug may nevertheless be a matter that requires consideration (per McClellan CJ at [34]). In the present case, it is not a mitigating factor by reason of the offender's role in the transaction, which was simply to package the pills, whatever their content. 25I now consider the appropriate sentence to impose upon the offender. I am satisfied this was at the low end of the range and that the offender was initiated into participating into a one-off transaction where the pills would be in his possession for a matter of a few hours, to be counted and divided before being returned. His role was limited, but it was nevertheless a role for which he was to be rewarded by a payment of $5,000. While I have no information as to the commercial value of the drugs, this is a not insubstantial amount of money. 26In calculating the sentence I also take account of the Form 1 matter, which must drive the sentence that I impose for this matter upwards ( The Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2004] NSWCCA 303; (2004) NSWLR 305). 27The offender is convicted and sentenced to imprisonment. 28I note the material relating to special circumstances set out above and set a non-parole period, in accordance with s 44(1) Crimes (Sentencing Procedure) Act for two years and nine months. The balance of the term of the sentence is two years and three months. To express this in another way, the offender will be sentenced to an overall sentence of five years with a non-parole period of two years and nine months. 29In accordance with s 47(2) Crimes (Sentencing Procedure) Act I direct that the sentence of imprisonment is taken to have commenced on 5 May 2010 which is the date from which the offender has been held in custody in relation to this offence. In accordance with s 48(1) I specify the date upon which the sentence is taken to have commenced as 5 May 2010 and the earliest day upon which the offender will become eligible to be released on parole is 4 February 2013. 30Mr Trinh, your overall sentence is five years and the non-parole period is two years and nine months, so you will become eligible to be released on parole on 4 February 2013. 31The Crown also seeks a destruction order. I order that the prohibited drugs seized on 5 May 2010 be destroyed. 32The sequence 3 charge will be remitted to the Local Court for mention on 18 March 2011 (s 166 certificate). ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2011