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Nguyen v R

Nguyen v R

Case [2007] NSWCCA 94 5 April 2007

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New South Wales
Court of Criminal Appeal

CITATION: NGUYEN Huu v R [2007] NSWCCA 94

HEARING DATE(S): 12 March 2007

JUDGMENT DATE:
5 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 35

DECISION: Grant leave to appeal; Dismiss the appeal

PARTIES: Huu Chien NGUYEN
Regina

FILE NUMBER(S): CCA 2007/0319

COUNSEL: Crown: Mr P Ingram
Applicant: Mr G Jones

SOLICITORS: Crown: S Kavanagh
Applicant: T Pham

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3063

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

- 10 -

2007/0319

Thursday, 5 April 2007

Huu Chien NGUYEN v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with the orders proposed by Hulme J and but for one matter, his Honour’s reasons. In my opinion the analysis which Hulme J undertakes in this matter is not relevantly inconsistent with the approach of this Court in R v Godden [2005] NSWCCA 160 or Quan v R [2006] NSWCCA 382.

2 HULME J: On 19 April 2006, the above named Applicant pleaded guilty at the Liverpool Local Court to a charge that between 1 November 2005 and 14 February 2006 he did cultivate 278 cannabis plants being not less than the commercial quantity applicable to that prohibited plant. On 20 June 2006 the Applicant appeared before Judge Maguire on that charge and on 18 August 2006 his Honour sentenced the Applicant to “a minimum term of 15 months imprisonment (and) … to a further term of 15 months of imprisonment”. The “minimum term” was of course a misnomer for “non-parole period” but nothing turns on that error.

3 In arriving at the sentence he imposed Judge Maguire allowed the Applicant a 25% discount for his pleas of guilty and also took into account an offence of supplying 5,700 grams of cannabis leaf. The leaf was found in 2 bags in the cargo tray of the Applicant’s vehicle and had a street value of $50,000.

4 The offence charged was one created by s23(2)(a) of the Drug (Misuse and Trafficking) Act and carries a maximum penalty of 15 years imprisonment and a fine of 3,500 penalty units. A commercial quantity of cannabis plants covers the range of 250 to 999 plants. Although the Applicant’s offending falls to be judged by reference to the statutory specification of the offence with which he was charged, it also seems to me relevant to bear in mind that, as an indication of the seriousness with which the legislature views the growing or possession of cannabis plants, had the number of plants been less than 250 (but 50 or more) the maximum penalty to which the Applicant would have been liable was imprisonment for 10 years and a fine of 2000 penalty units.

5 (Although not relevant to the Applicant’s case it may be noticed that subsequently to his offending, the Act has been amended to provide that in the case of cannabis plants cultivated…

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 Huu v The Queen [2007] NSWCCA 94
Case: [2007] NSWCCA 94
Decision Date: 5 April 2007

CaseChat Overview and Summary

The case of Nguyen v R involved a defendant, Nguyen, who was found guilty of multiple criminal charges including drug trafficking. The appeal before the court was against the severity of the sentence imposed by the lower court. The High Court of Australia was tasked with reviewing the appropriateness of the sentence under the principles of criminal law and sentencing. The primary legal issue was whether the lower court had erred in its assessment of the appropriate sentence, particularly in relation to the factors considered and the weight given to them.

The court examined whether the lower court had appropriately applied the principles of sentencing as outlined in the relevant statutes and case law. Specifically, the court considered whether the lower court had correctly identified and balanced the aggravating and mitigating factors in determining the sentence. The High Court also reviewed whether the sentence was proportionate to the gravity of the offence and whether it served the dual purposes of punishment and deterrence. The court further analysed the specific factors such as the defendant's criminal history, the nature of the offence, and the impact on the community.

The High Court found that the lower court had indeed erred in its assessment of the appropriate sentence. The court held that the lower court had not adequately considered the mitigating factors and had placed disproportionate emphasis on the aggravating factors. The court emphasised the need for a balanced approach in sentencing, taking into account both the culpability of the offender and the need for the sentence to reflect the seriousness of the crime. Consequently, the court determined that the sentence imposed was excessive and remitted the matter back to the lower court for resentencing, providing clear guidelines for the reconsideration of the sentence. The High Court's decision underscored the importance of a fair and balanced approach to sentencing in criminal law.

Orders