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Nguyen, Kathy v R

Nguyen, Kathy v R

Case [2015] NSWCCA 209 5 August 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen, Kathy v R [2015] NSWCCA 209
Hearing dates: 28 April 2015
Decision date: 05 August 2015
Before: Hoeben CJ at CL at [1]
Hall J at [2]
McCallum J at [84]
Decision:
(1)   The applicant be granted leave to appeal.

(2)   The aggregate sentence imposed upon the applicant by the Sydney District Court on 6 September 2013, be set aside.

(3)   The applicant be re-sentenced to an aggregate term of imprisonment of 10 years and 9 months, to include a non-parole period of 7 years 7 months, to commence on 19 April 2012 and to expire on 18 November 2019 and a balance of term of 3 years 2 months to commence on 19 November 2019 and to expire on 18 January 2023.
(4)   The first date upon which the applicant will be eligible to parole will be 19 November 2019.
Catchwords: CRIMINAL LAW – Application to appeal against sentence on two grounds – Pleas of guilty entered to three drug supply offences – Principle of parity – Whether sentence imposed gave rise to a justified sense of – Whether marked disparity between sentence imposed on applicant and sentence imposed on co-offender – Whether the starting point for the applicant’s sentence was too high in comparison to her co-offender – Co-offender was sentenced for different offences and charges on a Form 1 – No error demonstrated in sentencing judge’s determination of starting points – First ground dismissed – Whether discount of 12.5% for applicant’s plea of guilty gave rise to justified sense of grievance in circumstances where co-offender had received discount of 17.5% for his plea – Disparity arose in discounts for guilty pleas – Applicant entitled to equivalent discount of 17.5% – Second ground of appeal allowed – Sentence quashed – Applicant re-sentenced to reflect appropriate discount
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Green v The Queen [2011] 244 CLR 462
Hallak v R [2014] NSWCCA 48
Lowe v R (1984) 154 CLR 606
R v Araya [2005] NSWCCA 283
R v Newman [2004] NSWCCA 113
R v Scott [2003] NSWCCA 286
R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383
Tuvunivono v R [2013] NSWCCA 176
Category: Principal judgment
Parties: Kathy Nguyen (Applicant)
Regina (Crown)
Representation:
Counsel:
D Jordan SC; B Barrow (Applicant)
S Dowling SC (Crown)
Solicitors:
Benjamin & Leonardo Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/127387
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 September 2013

Before:

Blackmore DCJ

File Number(s):

2012/127387

Judgment

HOEBEN CJ at CL: I agree with Hall J.
HALL J: The applicant, Kathy Nguyen, seeks leave to appeal in respect of a sentence imposed upon her by the District Court (Blackmore DCJ) on 6 September 2013. On…

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.

Continue reading Nguyen, Kathy v R

Details

AGLC: Nguyen, Kathy v The Queen [2015] NSWCCA 209
Case: [2015] NSWCCA 209
Decision Date: 05 August 2015

CaseChat Overview and Summary

The appellant, Kathy Nguyen, appealed against her sentence on two grounds after entering guilty pleas to three drug supply offences. The appeal was heard in the High Court of Australia. The primary issue was whether the sentence imposed by the sentencing judge was just and whether there was a marked disparity between the sentences imposed on the appellant and her co-offender. A secondary issue was the appropriate discount for the appellant's guilty plea in comparison to the discount given to her co-offender.

The court examined the principle of parity in sentencing, which requires sentences to be proportionate and justifiable. The court found no error in the sentencing judge's determination of the starting points for the appellant's sentence. However, the court identified a disparity in the discount for the guilty pleas between the appellant and her co-offender. The court concluded that the appellant was entitled to an equivalent discount of 17.5% for her plea of guilty, as her co-offender had received.

The court dismissed the first ground of appeal, finding no error in the starting point of the appellant's sentence. However, the court allowed the second ground of appeal, finding that the disparity in the discount for the guilty pleas was unjust. The court quashed the appellant's sentence and ordered that she be re-sentenced to reflect the appropriate discount of 17.5%. The court emphasised the importance of proportionality and consistency in sentencing to maintain public confidence in the criminal justice system.

Orders