Cuong v The Queen

The appellant, Cuong, appealed against a sentence imposed by the Supreme Court of South Australia for drug trafficking offences. The appeal concerned the ground that the sentence was manifestly excessive.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentence imposed was manifestly excessive, and if so, what was the appropriate sentence. This involved considering the principles of sentencing for drug trafficking, the application of sentencing guidance, and the proper approach to determining manifest excess or inadequacy in sentencing.

A majority of the Court (Lovell and Bleby JJA) dismissed the appeal, finding that the sentence was not manifestly excessive. They reasoned that the appellant had engaged in drug trafficking on three separate occasions, with the final instance representing a significant escalation driven by profit. In contrast, Livesey JA would have allowed the appeal and resentenced the appellant. Livesey JA held that sentencing guidance should not be applied mechanically and that the sentencing court's discretion must be preserved. The judge emphasised that the appeal court must consider the individual sentences and their starting points, as well as the overall effect, before determining manifest excess or inadequacy. Livesey JA concluded that the starting points for the first two offences, and the ultimate sentence, were manifestly excessive given the less serious circumstances of those offences compared to the third.

Livesey JA would have allowed the appeal, quashed the original sentence, and resentenced the appellant to a head sentence of nine years imprisonment, with a minimum mandatory non-parole period of seven years, two months, and thirteen days, backdated to commence on 6 March 2020.