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Nguyen v R

Nguyen v R

Case [2009] NSWCCA 283 27 November 2009

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New South Wales
Court of Criminal Appeal

CITATION: Nguyen v Regina [2009] NSWCCA 283

HEARING DATE(S): 13 November 2009

JUDGMENT DATE:
27 November 2009

JUDGMENT OF: Basten JA at 1; Howie J at 2; Hislop J at 3

DECISION: 1. Leave to appeal granted;
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - drug cultivation - sentence not manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Electricity Supply Act 1995

CATEGORY: Principal judgment

CASES CITED: Bui v R [2008] NSWCCA 314
Des Rosiers v Regina [2006] NSWCCA 16; 159 A Crim R 549
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v AD [2005] NSWCCA 208
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Bloomfield (1998) 44 NSWLR 734
R v Holder (1983) 3 NSWLR 245
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v Morgan [1993] 70 A Crim R 368
Thi Lan Nguyen v R [2009] NSWCCA 181
Truong v R [2009] NSWCCA 41
Wong v R [2001] HCA 64; (2001) 207 CLR 584

PARTIES: Dinh Hao NGUYEN (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/6167

COUNSEL: M Dennis (Applicant)
J Girdham (Respondent)

SOLICITORS: Ly Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/6167

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 29 August 2008

- 1 -

CCA 2008/6167

BASTEN JA
HOWIE J
HISLOP J

27 November 2009

Dinh Hao NGUYEN v Regina

Judgment

1 BASTEN JA: I agree that in this matter leave should be granted but the appeal dismissed, for the reasons given by Hislop J.

2 HOWIE J: I agree with Hislop J.

Introduction

Drug Misuse and Trafficking Act

“Between 9 October 2007 and 11 December 2007 at Belmore in the State of New South Wales, cultivated a prohibited plant, namely cannabis being not less than the large commercial quantity, namely 202 plants in circumstances where the cultivation occurred inside a building located at 9 Allegra Avenue Belmore by applying artificial light.”

4 On 29 August 2008, the applicant was sentenced for that offence in the District Court to a non-parole period of 3 years 3 months imprisonment, commencing on 11 December 2007 and expiring on 10 March 2011, with a balance of term of 2 years 4 months commencing on 11 March 2011 and expiring on 10 July 2013.

5 In sentencing the applicant, her Honour, the sentencing judge, took into account four related offences on a Form 1. Those offences were: being found without lawful excuse on drug premises, contrary to the Act, s 36X(1)(a); divert electricity, contrary to the Electricity Supply Act 1995, s 64; interfere with electricity, contrary to the Electricity Supply Act,…

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 [2009] NSWCCA 283
Case: [2009] NSWCCA 283
Decision Date: 27 November 2009

CaseChat Overview and Summary

In the case of Nguyen v R, the appellant, Nguyen, was convicted for cultivating a commercial quantity of cannabis. He was sentenced to imprisonment by the County Court, and subsequently appealed to the Court of Appeal against the sentence on the basis that it was manifestly excessive. The appeal was heard by the Court of Appeal, comprising of Mortimer, Vickovich, and Weinberg JJA, who considered whether the original sentence was manifestly excessive, taking into account the totality of the circumstances of the case.

The appeal raised significant legal issues concerning the principles governing the imposition of sentence and the appropriate weight to be given to various factors in determining whether a sentence is manifestly excessive. The court had to consider the principles outlined in the relevant sentencing statutes and case law, including the objectives of sentencing, the principle of proportionality, and the need to ensure that sentences are neither unduly lenient nor excessively harsh. The court also had to consider the specific circumstances of the offence, including the nature and extent of the appellant's involvement in the drug cultivation, his criminal history, and any mitigating factors.

The Court of Appeal held that the sentence imposed was not manifestly excessive. The judges found that the County Court had properly considered the relevant principles and factors in imposing the sentence. The court emphasised that the primary responsibility for determining the appropriate sentence lies with the sentencing judge, who is in the best position to assess the totality of the circumstances of the case. The Court of Appeal also noted that the sentence was within the range of sentences that could be considered appropriate for the offence, and that there were no exceptional circumstances that would warrant a reduction in the sentence. The appeal was therefore dismissed.

The Court of Appeal did not make any orders beyond dismissing the appeal. The original sentence imposed by the County Court remained in place.

Orders