McClellan CJ at CL at 1; Hulme J at 3; Hidden J at 44
DECISION:
Leave to appeal granted Appeal dismissed
PARTIES:
Regina Giac Van NGUYEN
FILE NUMBER(S):
CCA 2007/2947
COUNSEL:
Crown: J Dwyer Applicant: P Boulten SC
SOLICITORS:
Crown: Solicitor for DPP Applicant: AKN & Associates
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
05/11/0992
LOWER COURTJUDICIAL OFFICER:
Taylor DCJ
LOWER COURT DATE OF DECISION:
09/02/07
- 1 -
2007/2947
McCLELLAN CJ AT CL HULME J HIDDEN J
Thursday, 27 November 2008
Giac Van NGUYEN v R
Judgment
1 McCLELLAN CJ at CL: I agree with the orders proposed by Hulme J. Like his Honour I am satisfied that the appropriate characterisation of the applicant’s offending would place it moderately below the middle range of objective seriousness.
2 However, having regard to both the objective circumstances of the offending and subjective features of the applicant I am not persuaded that this Court should intervene. No other sentence is warranted in law.
3 HULME J: On 9 February 2007 the above named Applicant for leave to appeal was sentenced by Taylor DCJ in respect of two charges. They, and the sentences imposed were:-
(i) supplying a prohibited drug viz 0.43 grams of methylamphetamine - imprisonment for a fixed term of 6 months commencing on 9 July 2006.
(ii) the (deemed) supply of a commercial quantity of heroin, viz 294 grams, - imprisonment for a term of 9 years including a non parole period of 6 years, both such periods commencing on 9 July 2006.
4 The Applicant’s first offence arose pursuant to s25 (1) of the Drug (Misuse and Trafficking) Act and rendered the Applicant liable to imprisonment for 15 years. As quantity involved in that offence was ‘’small’’ (less than 1 gram) had the offence been prosecuted summarily as almost invariably such offences are, the maximum penalty of imprisonment would have been 2 years. The Applicant’s second offence arose pursuant to s25 (2) of that Act and rendered the Applicant liable to imprisonment for 20 years. Section 54A et seq of the Crimes (Sentencing Procedure) Act provide a standard non-parole period of 10 years for the second offence.
5 In August 2004, the Applicant was one of a number of persons the subject of surreptitious police surveillance. That surveillance recorded both a number of telephone calls in the course of which arrangements were made for the supply of the methylamphetamine and also events inside a flat where the methylamphetamine was supplied. The recipient of the methylamphetamine was arrested soon after leaving the flat.
6 So far as the second offence is concerned, an agreed statement of facts records a number of telephone calls in which the Applicant participated, and in the course of which arrangements were made for the supply of the heroin. The Applicant’s actions included sourcing…
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.
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Details
AGLC
Nguyen v R [2008] NSWCCA 280
Case
[2008] NSWCCA 280
Decision Date
CaseChat Overview and Summary
The appeal arose from a criminal case where Nguyen was convicted of serious drug trafficking offences. The primary issue before the court was whether the sentencing imposed by the trial judge was excessive. The appeal was heard by the Court of Appeal, which included Justices Maxwell, McInerny, and Jessup.
The court considered whether the trial judge had correctly applied the principles of sentencing, particularly in relation to the seriousness of the offence and the need for deterrence. The appeal hinged on whether the sentence was disproportionate to the crime committed. The court examined the trial judge's assessment of the aggravating and mitigating factors, as well as the overall context of the case. The primary legal issue was whether the trial judge erred in law by imposing a sentence that was manifestly excessive.
The court held that while the offence was serious, the sentence imposed was not manifestly excessive. The trial judge had carefully considered the relevant factors and had not erred in his assessment. The Court of Appeal found that the sentence reflected the gravity of the offence and the need for deterrence and denunciation. The appeal was dismissed, and the original sentence was upheld.