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

1. HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.

2. 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.

3. 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.

4. 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 s 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW); and possession of methylphenidate contrary to s 10(1) of the DMT Act.

5. The judge sentenced the applicant to an aggregate term of imprisonment of 3 years 4 months commencing on 18 May 2017 and expiring on 17 September 2020, with a non-parole period of 2 years expiring on 17 May 2019.

The facts of the offences ​

6. During the proceedings on sentence a statement of agreed facts that had been signed by the applicant was handed to the judge. The agreed facts included the following:

“[1] In February 2014, State Crime Command Drug Squad Investigators commenced an investigation into the supply of prohibited drugs by [the applicant] to a male known as Stepjan Puric. Police applied for and were granted Telecommunication Warrants… which lawfully intercepted telephone conversations and messages between [the applicant] and Puric. These conversations related to the supply of the prohibited drugs Oxycodone (known as Endone or Oxynorm) and Fentanyl. In the intercepted conversations, [the applicant] and Puric negotiated the quantity of drugs to be supplied as well as the cost of the drugs and the time and place at which the supply was to take place.

[2] During the 30 day period, between 4 March 2014 and 2 April 2014 [the applicant] agreed to supply or supplied Puric with the prohibited drug Oxycodone on 13 separate occasions for financial gain. These agreements to supply or supplies took place on 5 March, 6 March, 8 March, 9 March, 12 March, 15 March, 17 March, 18 March, 19 March, 27 March, 28 March, 30 March and 1 April. The supply on 5 March at the McDonald’s restaurant […]

was witnessed by NSW Police Officers.

On 5 March 2014 [the applicant] agreed to supply Puric with 3 boxes of Oxycodone.

On 6 March 2014 [the applicant] supplied Puric with less than or up to 3 boxes of Oxycodone.

On 8 March 2014 [the applicant] supplied Puric with less than or up to 5 boxes of Oxycodone.

On 9 March 2014 [the applicant] supplied Puric with less than or up to 3 boxes of Oxycodone.

On 12 March 2014 [the applicant] supplied Puric with 2 boxes of Oxycodone.

On 15 March 2014 [the applicant] agreed to supply Puric with a number of Oxycodone.

[The applicant] indicated to Puric that he had 7 boxes available to sell.

On 17 March 2014 [the applicant] supplied Puric with 1 box of Oxycodone.

On 18 March 2014 [the applicant] agreed to supply Puric with 2 boxes of Oxycodone.

On 19 March 2014 [the applicant] agreed to supply Puric with 2 boxes of Oxycodone.

On 27 March 2014 [the applicant] agreed to supply Puric with a number of Oxycodone.

On 28 March 2014 [the applicant] agreed to supply Puric with 1 box of Oxycodone.

On 30 March 2014 [the applicant] supplied Puric with 2 boxes of Oxycodone.

On 1 April 2014 [the applicant] supplied Puric with 2 boxes of Oxycodone.

[3] During the 30 day period, between 6 April 2014 and 5 May 2014 [the applicant] agreed to supply or supplied Puric with the prohibited drugs Oxycodone and Fentanyl on 9 separate occasions for financial gain. These agreements to supply or supplies took place on 7 April, 9 April, 10 April, 12 April, 16 April, 17 April, 19 April, 20 April and 28 April.

On 7 April 2014 [the applicant] agreed to supply Puric with 5 boxes of Oxycodone for $550.00.

On 9 April 2014 [the applicant] supplied Puric with 2 boxes of Fentanyl each containing 5 patches for $600.00 per box.

On 10 April 2014 [the applicant] supplied Puric with 1 box of Oxycodone.

On 12 April 2014 [the applicant] supplied Puric with 6 boxes of Oxycodone.

On 16 April 2014 [the applicant] agreed to supply Puric with 2 boxes of Oxycodone.

On 17 April 2014 [the applicant] agreed to supply Puric with 1 box of Fentanyl.

On 19 April 2014 [the applicant] agreed to supply Puric with 1 box of Fentanyl.

On 20 April 2014 [the applicant] agreed to supply Puric with 1 box of Fentanyl.

On 28 April 2014 [the applicant] agreed to supply Puric with 2 boxes of 75mg Fentanyl at $470 per box.”

7. A supplementary statement of agreed facts was placed before the judge whereby the parties agreed that the profit obtained by the applicant for supplying the oxycodone and fentanyl to Puric was between $9,000 and $12,000.

Some sentencing remarks

8. When sentencing the applicant, his Honour summarised the agreed facts and remarked:

“The first matter which is on the indictment relates to an ongoing supply of the oxycodone during a 30 day period between 4 March 2014 and 2 April 2014 the [applicant] agreed to supply or supplied Mr Puric with the prohibited drug oxycodone on 13 separate occasions for financial gain. As was pointed out by the Crown this is well in excess of the required number for continuing supply.” [1] (Emphasis added.)

9. And further:

“On the other indictment in relation to an ongoing supply which related to oxycodone and fentanyl there was a 30 day period between 6 April 2014 and 5 May 2014 when the [applicant] agreed to supply or supplied Puric with prohibited drugs oxycodone and fentanyl on nine separate occasions again well in excess of the amount required for ongoing supply”. [2] (Emphasis added.)

10. The judge noted “…the various quantities, which are highly significant, and the persistence”. [3]

11. In summarising the offences, the judge was adopting what was in the agreed facts. Neither the Crown nor the applicant’s lawyer raised with his Honour, that in assessing the objective seriousness of the applicant’s offending he could not take into account the agreements to supply the prohibited drugs, which were detailed in the agreed facts.

The appeal

12. The applicant seeks leave to appeal on the following ground:

“In assessing the objective gravity of the offence, his Honour erroneously took into account occasions; when the applicant did not, in fact, supply prohibited drugs for financial or material reward.”

Argument

13. The applicant submitted that the passages quoted at [8] - [10] above demonstrate that the judge took into account each act of “supply” within the extended meaning of that term which is found in s 3(1) of the DMT Act. The applicant argued that by taking into account the agreements to supply the prohibited drugs to Puric as well as the actual supplies of those drugs in assessing the objective seriousness of the offences, the judge fell into error. His Honour’s remark that the various quantities of the drugs was “highly significant” was a result of this error.

14. The applicant pointed out that of the thirteen “supplies” which founded the first offence, six “supplies” were in fact offers to supply. In the second offence, only three were actual supplies and the remaining six were offers to supply. The applicant contended that the offers to supply should not have been included when determining the quantities supplied or the frequency of the supplies.

15. The applicant placed reliance upon Tran, Ty v R [2007] NSWCCA 140 (“Tran”) and R v Jackson [2004] NSWCCA 110 (“Jackson”). Particular reference was made to the judgment of Rothman J in Tran at [19] - [20] where his Honour said:

“[19] I have had the advantage of reading the reasons for judgment of McClellan CJ at CL. I agree generally with the reasons of his Honour and I agree with the orders he proposes.

[20] An offence under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) is a serious offence carrying a maximum penalty of 20 years. It requires, as an element of the offence, an ongoing actual supply of drugs. Invariably, in order to perpetrate an offence under section 25A, the offender would need to be in possession of illicit drugs of a quantity which would, pursuant to the terms of section 25 of the Drugs Misuse and Trafficking Act, be deemed to be supply.”

Reference was also made to the agreement by Hidden J at [18] “…with the additional observations of Rothman J”.

16. The applicant contended that the extended definition of supply in s 3(1) of the DMT Act was constrained by the subsequent words “for financial or material reward” which appear in s 25A.

17. The applicant submitted that when one considers the legislative history of the section to the extent there is any ambiguity (which the applicant submitted there was not), the section was intended to capture street level dealers who deal in small quantities. The applicant argued that s 25A was not dealing with what might be otherwise captured by the extended definition.

18. A further submission was that the analysis in Jackson by Sully J, that there must be receipt of a material reward by the person charged, supported the applicant’s argument. The applicant contended that it would be an absurdity to suggest that the extended definition applied because it would mean, as in the present case, that the making of an offer led to the reward.

19. The Crown submitted that neither Tran nor Jackson support the applicant’s contention. The Crown said that the question of whether the extended definition of “supply” can apply to offences under s 25A was not argued or considered in either case. However, the Crown put to the Court that it was significant for the present appeal that in Jackson, Sully J specifically referred at [38] to the “extraordinarily wide definition of supply” contained in the DMT Act when considering whether the definition was capable of embracing the activities of the offender in that case.

20. The Crown argued that there was nothing in s 25A that seeks to limit or vary the definition of what can constitute a “supply” for the purposes of s 25A. The requirement under s 25A is that the supply be for financial or material reward. The Crown submitted that whether the activities of an offender can be said to fall within the scope of s 25A is a question of fact to be resolved by reference to the evidence and in light of the extraordinarily wide definition of supply.

21. The Crown pointed out that there was no issue in the appeal that each act of “supply” was for financial or material reward. The applicant signed an agreed statement of facts which was handed to the judge on sentence. Each of the supplies (or agreements to supply) referred to in the agreed statement of facts were “supplies” that fell within the ambit of s 3(1). The agreed facts recorded that each of the supplies or agreements to supply in respect of the ongoing supply charges under s 25A were for financial gain.

22. The Crown further referred to the supplementary statement of agreed facts which recorded that the profit obtained by the applicant for supplying oxycodone and fentanyl was between $9,000 and $12,000.

23. The Crown submitted that there is no ambiguity about the wording of s 25A nor any ambiguity in the extended meaning of the term “supply” in s 3(1).

Consideration

24. As reliance is placed on Tran and Jackson by the applicant, it is necessary to refer to those cases.

25. In Tran, the offender appealed against the sentences imposed for the ongoing supply of heroin on five separate occasions contrary to s 25A of the DMT Act (the first count) and a deemed supply of heroin contrary to s 25 of the DMT Act (the second count). In relation to the first count, there was evidence that on four occasions the applicant supplied heroin in approximately 5 gram packages. On the fifth occasion he sold 56 grams of heroin. On that day, the applicant was found to be in possession of a further 75 grams of heroin which gave rise to the second charge.

26. All of the occasions of supply in respect of the first count were actual supplies and the Court (McClellan CJ at CL, Hidden and Rothman JJ) did not consider the issue that is raised in the present appeal. The offender’s complaint in Tran was confined to the submission that greater concurrency of the sentences should have been provided. In delivering the principal judgment of the Court and in dismissing the appeal, McClellan CJ at CL concluded that the total sentence and concurrence was appropriate with which Hidden and Rothman JJ agreed. The additional observations of Rothman J that are quoted at [15] above are obiter dicta and should be viewed in the context of the facts in Tran which were confined to the actual supply of heroin.

27. In Jackson, the offender challenged his conviction for the supply of methylamphetamine contrary to s 25A of the DMT Act principally on the basis that in respect of the second and third alleged transactions there was no evidence of a financial or material reward. Sully J (with whom Wood CJ at CL and Hislop J agreed) said at [29]:

“I would myself be content to decide the point upon the basis that there is no ambiguity about the wording of the section; and that the ordinary and grammatical reading of the terms of the section carry by necessary implication the proposition that it is the person who actually has done the relevant supplying who must be shown to have gained something out of it by way of financial or material reward.”

28. And further at [32] - [33]:

“[32] In order to test his Honour’s conclusion, and the reasoning which underpins it, I too have considered the relevant portions of the relevant Second Reading speech. Those portions read as follows:

“The new offence plugs a potential loop-hole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985. Presently, it could be argued that dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantity. The amount of drugs which are supplied is immaterial to an offence under section 25A, either within each individual offence or in total. Furthermore, the offence is constituted by the supply of any prohibited drug – other than cannabis – within a 30-day period. In other words, it is immaterial whether the same drug is supplied on the three separate occasions. Once again, the provision is framed in a way which will prevent dealers from evading the ambit of the provision on technical grounds. The other elements of the new offence – including the element of ‘for financial or material reward’ – will need to be proven in the usual way; that is, proven beyond reasonable doubt by the prosecution. The Bill …… provides a new weapon in the armoury of police against those who persistently engage in the commercial supply of hard drugs, without restrictive emphasis upon the quantity supplied on each occasion. It steps up the campaign against dealers where it matters – on the streets – and facilitates the apprehension, arrest and incarceration of such dealers.” [Legislative Assembly of NSW: Hansard: 7 May 1998 at 4689, 4690]

[33] It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in section 25A to “financial or material reward” is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section...”

29. The ratio decidendi of Jackson is that the reference in s 25A to “financial or material reward” is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section. This is not an issue in the present appeal as the agreed facts disclosed that the applicant “agreed to supply or supplied Puric with… [o]xycodone on 13 separate occasions for financial gain” (see [6](2) above) and “…agreed to supply or supplied Puric with [o]xycodone and [f]entanyl on 9 separate occasions for financial gain” (see [6](3) above).

30. As in Tran, the Court in Jackson did not consider whether the extended definition of “supply” can apply to an offence under s 25A. In my view, neither case is authority for the applicant’s contention that the scope of s 25A is confined to actual supplies.

31. In order to answer the question in this appeal, the relevant sections must be considered. The term “supply” is found in s 3(1) of the DMT Act which relevantly is as follows:

3   Definitions

(1)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

…

32. Section 25A(1) of the DMT Act provides:

25A   Offence of supplying prohibited drugs on an ongoing basis

(1) Offence provision

A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.

Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.

…

33. The definition of “supply” applies “except in so far as the context or subject-matter otherwise indicates or requires”. These words confirm the well understood proposition of construction that the meaning of a definition turns on the context in which it appears, considered as a whole. [4] In Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 McHugh J said at [103]:

“[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment… [O]nce it is clear that the definition applies, … the only proper … course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome.”

34. Accordingly, the word “supplies” in s 25A must be read in accordance with the extended meaning in s 3(1) unless the context or subject matter otherwise indicates or requires. The applicant’s argument is that the words “for financial or material reward” indicate that the extended meaning does not apply and only actual supplies of prohibited drugs fall within the section.

35. It is unnecessary to resort to the Second Reading Speech to resolve this issue. There is no ambiguity in the terms of s 25A. The section commenced on 7 August 1998. Plainly, the mischief that the enactment of the section was designed to meet, was the on-going supply of small quantities of prohibited drugs. The extended definition of “supply” preceded the enactment of s 25A and there is simply no rational basis for deciding that it was the intention of the legislature that the extended definition would not apply to the section. The intention of the legislature was that the new offence would complement the existing law and would cover any act of supply as defined in s 3(1), so long as it was for financial or material reward.

36. The preposition “for” appears before the words “financial or material reward”. The dictionary meaning of “for” includes:

“1. [W]ith the object of or purpose of…

…

3. [I]n order to obtain…” [5]

The Oxford English Dictionary meanings include:

“8.a. With a view to; with the object or purpose of…

…

9.a. In order to obtain…” [6]

37. The presence of the preposition before “financial or material reward” strongly indicates that the purpose of the act of supply has primary importance in the construction of the section. Where an accused’s purpose in supplying a prohibited drug is to obtain a financial or material reward the offence is committed provided the other elements of s 25A are met. Applying such a construction, s 25A operates in the same way in respect of agreements to supply, or offers to supply as it does in respect of actual supplies.

38. Where the purpose of a “supply” is not for financial or material reward, no offence is committed under s 25A. For example, if an accused agrees to supply or supplies drugs to a friend for no reward on three or more occasions, none of these supplies would fall within s 25A.

39. This construction is in accordance with the purpose of s 25A which Sully J described in Jackson as being to target “…the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply” (see [28 above).

40. In my view, the offence of supplying prohibited drugs on an ongoing basis contrary to s 25A is not confined to the actual supply of prohibited drugs (other than cannabis) for financial or material reward on three or more occasions. The judge was entitled to take into account the agreements to supply the prohibited drugs to Puric, all of which were for financial gain, in assessing the objective gravity of the offences. Accordingly, the appeal must fail.

41. The orders I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

42. DAVIES J: I agree with Price J.

**********

Decision last updated: 10 August 2018