Nguyen, Hung Manh v The Queen - [2020] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nguyen, Hung Manh v R [2020] NSWCCA 20
Hearing dates: 12 August 2019
Date of orders: 24 February 2020
Decision date: 24 February 2020
Before: Macfarlan JA at [1]
Johnson J at [2]
Lonergan J at [7]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeal against sentence – parity –
appeal on basis that sentencing judge did not have regard to the principle of parity – parity in respect of co-offenders – applicant with greater role in the course of offending than co-offenders – criminal enterprise – sentence for cultivation of commercial quantity of cannabis plants – supply (deemed) of a commercial quantity of cannabis
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hiron v R [2018] NSWCCA 10
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kelly v R [2017] NSWCCA 256
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Tran v R [2018] NSWCCA 220
Category: Principal judgment
Parties: Hung Manh Nguyen (Applicant)
Regina (Crown)
Representation:
Counsel:
F Coyne (Applicant)
K Jeffreys (Crown)
Solicitors:
T T M Pham (Applicant)
C Hyland (Crown)

File Number(s): 2017/215357
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

07 September 2018

Before:

Maiden SC DCJ

File Number(s):

2017/215357

Judgment

MACFARLAN JA: I agree with Lonergan J.
JOHNSON J: I agree with the orders proposed by Lonergan J and generally with her Honour’s reasons.
There were clear and explicable reasons for the differences in the sentences imposed upon the applicant and the co-offenders. Unlike the co-offenders, the applicant had extensive and repeated involvement in the cultivation of a commercial quantity of cannabis plants at these suburban premises in Kingswood. This Court has observed that this class of offence involves organised criminal activity whereby extremely valuable cannabis crops are cultivated in residential premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity “in places which were effectively hidden in plain sight in urban communities”: Tran v R [2018] NSWCCA 220 at [79], [157].
The applicant’s repeated involvement in cultivation at these suburban premises was to be contrasted with the very limited involvement by the co-offenders on one day with respect to a much smaller quantity of cannabis plants.
Further, the applicant asked that a further serious offence be taken into account on a Form 1 when passing sentence for the primary offence.
No basis has been demonstrated for an objective grievance concerning the different sentences passed in the case of the applicant and the co-offenders.
LONERGAN J: This is an application for leave to appeal from a sentence imposed by his Honour Judge Maiden SC DCJ on 7 September 2018. The applicant…

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: [2020] NSWCCA 20
Decision Date: 24 February 2020

CaseChat Overview and Summary

The case of Nguyen, Hung Manh v The Queen involved the appellant, Hung Manh Nguyen, who appealed against his sentence for cultivating a commercial quantity of cannabis plants and the deemed supply of a commercial quantity of cannabis. The case was heard in the High Court of Australia. The appellant argued that the sentencing judge had not adequately considered the principle of parity when determining his sentence, particularly in relation to the sentences given to his co-offenders.

The legal issue before the court was whether the sentencing judge had correctly applied the principle of parity, which requires that similarly situated offenders receive similar sentences, in assessing the appropriate penalty for the appellant's involvement in the criminal enterprise. The appellant contended that he played a more significant role in the cultivation of the cannabis plants than his co-offenders, who received lesser sentences, and that this warranted a more lenient sentence for him.

The High Court, in its judgement, examined the sentencing judge's consideration of the principle of parity and the factors relevant to the imposition of the sentence. The court noted that while the principle of parity is important, it is not an absolute rule and must be balanced with other considerations, such as the appellant's role in the offending and the need for general deterrence. The court held that the sentencing judge had appropriately considered the principle of parity and had given adequate weight to the appellant's greater role in the offending, as well as other relevant factors, in determining the appropriate sentence. The appeal was therefore dismissed.

The court did not make any further orders, and the original sentence imposed by the sentencing judge remained in place.

Orders