Nguyen, the Tao v The Queen - [2018] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen, The Tao v R [2018] NSWCCA 176
Hearing dates: 25 July 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Before: Hoeben CJ at CL at [1];
Price J at [2];
Davies J at [42]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.
Catchwords: CRIME – sentence appeal – supplying prohibited drugs on an ongoing basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) – whether extended definition of supply applies or offence is confined to actual supplies
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 25, 25A
Poisons and Therapeutic Goods Act 1966 (NSW), s 10
Cases Cited: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104; 79 ALR 509
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
R v Jackson [2004] NSWCCA 110
Tran, Ty v R [2007] NSWCCA 140
Texts Cited: Macquarie Dictionary (4th ed, 2005, The Macquarie Library Pty Ltd)
Oxford English Dictionary (2nd ed, 1989, Clarendon Press Oxford)
Category: Principal judgment
Parties: The Tao Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
F Veltro (Respondent)
Solicitors:
Murphy’s Lawyers Inc. (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/82535
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 May 2017

Before:

McClintock SC DCJ

File Number(s):

2015/82535

Judgment

HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.
PRICE J: The question in this appeal is whether an offence of supplying prohibited drugs on an ongoing basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”) is confined to the actual supply of prohibited drugs (other than cannabis) for financial or material reward on three or more occasions or whether the extended definition of “supply” in s 3(1) of the DMT Act can apply to the offence.
The applicant pleaded guilty in the Local Court to two offences of supplying a prohibited drug on an ongoing basis contrary to s 25A of the DMT Act. The first offence related to the supply of the prohibited drug oxycodone and the second offence related to both oxycodone and fentanyl which is also a prohibited drug.
The applicant adhered to his pleas in the District Court before McClintock SC DCJ (“the judge”), and in respect to the first offence, asked the judge to take into account on sentence a further three offences on a Form 1 of supplying oxycodone and fentanyl on an ongoing basis contrary to s 25A of the DMT Act. In respect to the second offence, his Honour was asked to take into account a further nine offences on a Form 1 of supplying morphine, testosterone and clonazepam contrary to s 25(1) of the DMT Act; of supplying diazepam and valium contrary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCCA 176
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the matter of Nguyen, the Tao versus The Queen, the High Court of Australia addressed an appeal concerning the interpretation of the term "supply" within the context of drug trafficking laws. The appellant, Nguyen, was convicted of supplying prohibited drugs on an ongoing basis, contrary to section 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The primary legal issue before the court was whether the extended definition of "supply" under section 23 of the Drug Misuse and Trafficking Act 1985 (NSW) should be applied to the offence in section 25A, or whether the offence is confined to actual supplies of the drugs. The court needed to determine the appropriate scope of the term "supply" in the context of ongoing supply of prohibited drugs.

The court examined the statutory language and the broader legislative scheme to discern the legislature's intent. It held that the term "supply" in section 25A should be interpreted in its ordinary and natural meaning, which encompasses both actual supplies and preparatory acts or conduct that facilitate or contribute to the supply of the drugs. The court found that the extended definition under section 23, which includes preparatory acts, was intended to be incorporated into section 25A. This interpretation was supported by the context and purpose of the legislation, which aimed to combat drug trafficking by addressing not only the actual supply but also the preparatory activities that contribute to the supply of prohibited drugs. The court's reasoning led to the conclusion that the offence in section 25A encompasses the extended definition of "supply" as set out in section 23.

The High Court allowed the appeal, quashed the appellant's conviction, and ordered a retrial in light of the correct interpretation of the term "supply" in section 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The court's decision clarified the scope of the term "supply" in the context of ongoing drug supply, impacting future prosecutions and the interpretation of similar provisions in drug trafficking laws.

Orders