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Nguyen v R

Nguyen v R

Case [2008] NSWCCA 322 18 December 2008

Appeal

Sentencing

Discount for Plea of Guilty

Remorse

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Nguyen v R [2008] NSWCCA 322

HEARING DATE(S): 8 December 2008

JUDGMENT DATE:
18 December 2008

JUDGMENT OF: Tobias JA at 11; James J at 34; Price J at 35

DECISION: (a) Leave to appeal against sentence granted.
(b) Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – Accumulation of sentences – Discount for plea of guilty – Relevance of strength of prosecution case – Discount for remorse – Whether sentence manifestly excessive – CRIMINAL PRACTICE and PROCEDURE – Submissions after hearing – Submissions without leave – Whether exceptional circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

CATEGORY: Principal judgment

CASES CITED: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Chapman v Caska [2005] NSWCA 113
Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48
In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21
Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230
R v Sutton [2004] NSWCCA 225
R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

PARTIES: Van Cuong Nguyen
Regina

FILE NUMBER(S): CCA 15226/07

COUNSEL: A: G Wendler
R: P Miller

SOLICITORS: A: AKN & Associates
R: Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2007/00015226

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 19 March 2008

CCA 15226/07

TOBIAS JA
JAMES J
PRICE J
Thursday 18 December 2008

VAN CUONG NGUYEN v REGINA

Judgment

1 TOBIAS JA: On 31 January 2008 the applicant, Van Cuong Nguyen, pleaded guilty in the District Court at Parramatta before his Honour Judge Williams to an indictment containing the following two counts:

Count 1 : That on 31 May 2007 at Guildford in the State of New South Wales [he] did cultivate a prohibited plant, namely, cannabis plants being not less than the commercial quantity, namely 105 plants;

Count 2

2 The applicant was sentenced by his Honour Judge Bennett SC in the District Court at Parramatta on 19 March 2008. With respect to Count 2 – supply prohibited drug, his Honour imposed a total sentence of three years and four months with a non-parole period of two years and six months commencing on 31 May 2007 and expiring on 30 November 2009. With respect to Count 1 – cultivate commercial quantity of prohibited plant, his Honour imposed a total sentence of five years, with a non-parole period of three…

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 [2008] NSWCCA 322
Case: [2008] NSWCCA 322
Decision Date: 18 December 2008

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, Nguyen, against his sentence. The appellant had been convicted of drug trafficking and was sentenced to a term of imprisonment. The Crown sought an accumulation of sentences, arguing that the appellant's criminal history warranted a harsher penalty. The appellant, on the other hand, contended that the sentence was manifestly excessive and should be reduced, taking into account the strength of the prosecution case, his plea of guilty, and his display of remorse.

The central legal issues for the Court to address were the appropriate weight to be given to the strength of the prosecution case, the extent of the discount for the appellant's plea of guilty, the relevance of the appellant's remorse, and whether the sentence imposed was manifestly excessive. The Court also needed to determine whether the appellant's submissions made after the hearing, without leave, could be considered under the exceptional circumstances doctrine.

The Court held that the strength of the prosecution case was not a relevant consideration in determining the discount for the appellant's plea of guilty, as it had already been taken into account in assessing the culpability of the appellant. The Court found that the appellant's plea of guilty warranted a 15% discount, and his display of remorse warranted a further 5% discount, resulting in a total discount of 20%. However, the Court found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence. The Court also held that the appellant's submissions made after the hearing, without leave, could not be considered under the exceptional circumstances doctrine, as they did not meet the requirements for such an application.

The Court dismissed the appeal and affirmed the sentence imposed by the trial judge. The appellant was ordered to serve the sentence of imprisonment as determined by the trial judge, with the appropriate discounts applied.

Orders