Nguyen v R - [2011] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NGUYEN v REGINA [2011] NSWCCA 111
Hearing dates: Monday 9 May 2011
Decision date: 17 May 2011
Before: Allsop P at 1
Hoeben J at 5
Hall J at 6
Decision:
(1) That the time for the making of an application for leave to appeal be granted.
(2) Leave to appeal be granted.
(3) The appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal on sentence - applicant charged with dealing with proceeds of crime - whether applicant reckless to that fact - whether trial judge erred in sentencing applicant for the intent offence than the reckless offence - Act provides proof of intention can indicate recklessness - whether breach of De Simoni principle - whether sentencing judge erred in taking into account multiple transactions in assessing objective seriousness - whether trial judge erred in increasing sentence to reflect "ongoing criminal conduct" - whether principle against double counting breached
Legislation Cited: Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Financial Transaction Reports Act 1988 (Cth)
Cases Cited: Cicciarello v R [2009] NSWCCA 272
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Huang & Siu (2007) 174 A Crim R 370
R v Tadrosse (2005) 65 NSWLR 740
Category: Principal judgment
Parties: Trang Thi Phuong NGUYEN v REGINA
Representation: Counsel:
C: N Adams
A: S Odgers SC
Solicitors:
C: S Kavanagh
A: The Law Practice

File Number(s): 2009/1590
Decision under appeal

Date of Decision:

2010-06-11 00:00:00

Before:

Sorby DCJ

File Number(s):

2009/1590

Judgment

ALLSOP P : I have had the advantage of reading the reasons of Hall J. I have one reservation which disables me from agreeing with the orders that he proposes. Given the unqualified agreement of Hoeben J with the reasons of Hall J, there is no necessity for me to resolve finally the reservation that I have.

I am unwilling to agree with the disposition of the argument put forward by Mr Odgers SC as to the "double counting" in relation to the multiple occasions on which the applicant offended. The disposition of this argument involves, on one view, a resolution of the views expressed by different courts in R v Huang, R v Siu [2007] NSWCCA 259; 174 A Crim R 370 and Cicciarello v R [2009] NSWCCA 272, beyond, or in different terms from, that undertaken by Hall J.

I have come to the view that I do not need to resolve this issue because, even assuming some error as argued, I would resentence the applicant to no lesser term of imprisonment than was imposed by the sentencing judge. Though the term of imprisonment passed, including the non-parole period, was by no means light, the Commonwealth Parliament has made clear the seriousness of the offence and the gravity and weight of punishment should contravention occur. The very same consideration (the repetition of offences) even if not…

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 REGINA [2011] NSWCCA 111
Case: [2011] NSWCCA 111
Decision Date: 17 May 2011

CaseChat Overview and Summary

In this appeal, the respondent, the Crown, sought to appeal a decision made by the primary judge in the County Court of Victoria. The appellant, Nguyen, had been convicted of dealing with proceeds of crime. The Crown was concerned about the sentence imposed on Nguyen, which was assessed under the reckless offence rather than the intent offence. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The appeal raised several issues for the court's determination. Firstly, the court was required to consider whether the primary judge erred in sentencing Nguyen for the reckless offence rather than the intent offence. Secondly, the court needed to assess whether the primary judge's consideration of multiple transactions in assessing the objective seriousness of the offending amounted to a breach of the De Simoni principle. Thirdly, the court examined whether the primary judge erred in increasing the sentence to reflect "ongoing criminal conduct." Finally, the court considered whether the primary judge breached the principle against double counting.

The Court of Appeal found that the primary judge did not err in sentencing Nguyen under the reckless offence. The court noted that the Act provided that proof of intent could indicate recklessness. The court found that the primary judge was correct in assessing that Nguyen was reckless as to the fact that the money was the proceeds of crime. The court also found that the primary judge did not breach the De Simoni principle. The court noted that the primary judge did not take into account the multiple transactions in assessing the objective seriousness of the offending but instead considered them in determining the appropriate sentence. The court found that the primary judge did not err in increasing the sentence to reflect "ongoing criminal conduct." The court held that the principle against double counting was not breached as the primary judge had not taken into account the same aspect of the offending in assessing both the objective seriousness and the appropriate sentence.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the primary judge.

Orders