Legal Research
Cases
Nguyen v R

Nguyen v R

Case [2012] NSWCCA 42 19 April 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Van Dung Nguyen v R [2012] NSWCCA 42
Hearing dates: 20 March 2012
Decision date: 19 April 2012
Before: McClellan CJ at CL at [1]
Davies J at [2]
Garling J at [41]
Decision:
(1) Leave to appeal granted
(2) Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against sentence - cultivate commercial quantity of cannabis - parity principle - different roles of co-offenders - where sentence of co-offenders inadequate - whether sentence manifestly excessive.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36
Nguyen v R [2008] NSWCCA 322
Rae v R [2011] NSWCCA 211
Rees v R [2012] NSWCCA 47
Thi Lan Nguyen v R [2009] NSWCCA 181
Truong v R [2009] NSWCCA 41
Van Cuong Pham v R [2009] NSWCCA 266
Category: Principal judgment
Parties: Van Dung Nguyen (Applicant)
Crown
Representation: Counsel:
G Wendler (Applicant)
T Smith (Crown)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): CCA 2010/252846
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-17 00:00:00

Before:

Sides DCJ

File Number(s):

2010/252846

Judgment

McCLELLAN CJ AT CL: I agree with Davies J.

DAVIES J: On 16 February 2011 the Applicant pleaded guilty to a charge of cultivating by enhanced indoor means a number of prohibited plants (being cannabis) not less than the commercial quantity contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years imprisonment and/or a fine of 3500 penalty units.

Judge Sides QC sentenced the Applicant to a period of imprisonment for 3 years non-parole with an additional terms of 2 years and 3 months. This sentence was imposed after his Honour allowed a 25% discount for an early plea.

At the same time his Honour sentenced two other offenders who had pleaded guilty to knowingly take part in the cultivation of the same cannabis plants. Each of those offenders was sentenced to a period of imprisonment of 15 months non-parole with an additional term of 15 months.

The Applicant seeks leave to appeal against the sentence imposed upon him principally on the grounds of parity, and also because it is alleged that the sentence is manifestly excessive.

The facts

The following facts were found by the Sentencing Judge.

At about 6.25am on Thursday 29 July 2010 police officers executed a lawfully obtained search warrant at premises at 5 Amanda Place, Ingleburn. Shortly after they knocked on the front door they were greeted by the Applicant Van and the co-offender Thu. They are boyfriend and girlfriend. During a search of the premises the police located the other co-offender Son hiding behind a desk in the garage area. He is a Canadian citizen and was visiting Australia on a tourist visa at the time. He is the half-brother of Van.

When they searched the premises the police located a total of 157 cannabis plants growing…

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 R [2012] NSWCCA 42
Case: [2012] NSWCCA 42
Decision Date: 19 April 2012

CaseChat Overview and Summary

The appellant, Nguyen, was convicted of cultivating a commercial quantity of cannabis. He appealed against the sentence imposed by the court. The central issue in the appeal was whether the sentence was manifestly excessive. The court needed to consider the principle of parity, which requires that similar offences be punished similarly, and whether the different roles of co-offenders could justify a variance in sentencing.

The court examined the principle of parity and the appropriate role of the different roles of co-offenders in sentencing. It acknowledged that while the principle of parity is important, it is not an absolute rule and must be balanced with other considerations. The court noted that the appellant's role in the offence was more significant than that of his co-offenders, which justified a higher sentence. However, the court also had to consider the sentences imposed on the co-offenders. If those sentences were inadequate, it would impact the appellant's sentence.

Ultimately, the court found that the appellant's sentence was not manifestly excessive. Although the co-offenders received lesser sentences, the court considered the different roles played by each in the offence. The court determined that the appellant's more significant involvement warranted a harsher penalty. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders