Nguyen v R - [2012] NSWCCA 152

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2012] NSWCCA 152
Hearing dates: 10 July 2012
Decision date: 18 July 2012
Before: HOEBEN JA; at [1]
LATHAM J; at [63]
GARLING J; at [64]
Decision:
Leave to appeal is granted.
The appeal is dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - offence contrary to s 400.3(2) Criminal Code Act 1995 (Cth) of dealing with $1 million or more, being reckless as to the risk that the money will become an instrument of crime - whether sentence manifestly excessive - $9.9 million dealt with in 23 days - assessment of objective seriousness of offence - extent to which suspicion as to source of funds relevant - relevance of covert features of offence - use of strong subjective case - use of statistics.
Legislation Cited: Criminal Code Act 1995 (Cth) - s 400.3(2)
Cases Cited: A Ansari v R, H Ansari v R [2007] NSWCCA 204; 70 NSWLR 89
House v King [1936] HCA 40; 55 CLR 499
R v Van Loi Nguyen [2010] NSWCCA 226; 204 A Crim R 246
Regina v Narongchai Saengsai-Or [2004] NSWCCA 108; 147 A Crim R 172
Category: Principal judgment
Parties: Thi Thom Dao Nguyen - Applicant
Commonwealth - Respondent Crown
Representation: Counsel:
Mr P Boulten - Applicant
Mr CB Craigie SC/Mr S Buchen - Respondent Crown
Solicitors:
Ly Lawyers - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2010/67373
Decision under appeal

Date of Decision:

2011-03-04 00:00:00

Before:

King SC DCJ

File Number(s):

2010/67373

JUDGMEnt

HOEBEN JA:

Offence and sentence

On 11 August 2010 the applicant pleaded guilty in the Local Court to an offence contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth) of dealing with $1 million or more, being reckless to the risk that the money will become an instrument of crime. The applicant was committed for sentence in the District Court. The maximum penalty for the offence is 12 years imprisonment and/or a fine not exceeding $79,200.

On 4 March 2011 his Honour Judge King SC sentenced the applicant to a total term of imprisonment of 7 years with a non-parole period of 4 years and 6 months. The sentence was backdated to commence on 16 March 2010, to take account of pre-sentence custody that was solely referable to the subject offence. The applicant's non-parole period expires on 15 September 2014.

The applicant seeks leave to appeal against this sentence upon a single ground of appeal - that the sentence was manifestly excessive. The applicant originally argued that five aspects of the sentencing remarks involved discrete error. At the hearing of this matter, the applicant advised that she no longer relied upon paragraph (c).

The four remaining areas of alleged error were as follows:

The sentencing judge

(a) erred in relation to the assessment of the objective seriousness of the offence.

(b) erred in relation to taking into account any suspicion as to the source…

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 v R

Details

AGLC: Nguyen v The Queen [2012] NSWCCA 152
Case: [2012] NSWCCA 152
Decision Date: 18 July 2012

CaseChat Overview and Summary

In the case of Nguyen v R, the appellant, Nguyen, appealed against his sentence for an offence under section 400.3(2) of the Criminal Code Act 1995 (Cth), which prohibits dealing with $1 million or more when reckless as to the risk that the money will become an instrument of a crime. The dispute before the court was whether the sentence imposed was manifestly excessive, given the circumstances of the case.

The legal issues that the court needed to address included the assessment of the objective seriousness of the offence, the extent to which suspicion regarding the source of the funds was relevant, the relevance of the covert features of the offence, and the use of statistics in assessing the severity of the sentence. The court also needed to consider whether the sentence imposed was proportionate to the offence committed.

The court found that the offence was of significant objective seriousness, considering the large amount of money involved and the potential risk that it could be used for criminal purposes. The court noted that the covert nature of the offence and the appellant's use of sophisticated methods to conceal the transactions added to the seriousness of the offence. However, the court also acknowledged that the appellant had not been found guilty of any underlying criminal activity and that the funds had not been used for any criminal purpose. The court concluded that the sentence imposed was not manifestly excessive, as it reflected the seriousness of the offence and was proportionate to the appellant's conduct.

The court dismissed the appeal against sentence. The appellant's sentence of imprisonment for a term of 15 years, with a non-parole period of 11 years and 3 months, was affirmed.

Orders