Legal Research
Cases
Nguyen v R

Nguyen v R

Case [2017] NSWCCA 39 22 March 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Regina [2017] NSWCCA 39
Hearing dates: 16 March 2017
Date of orders: 22 March 2017
Decision date: 22 March 2017
Before: Hoeben CJ at CL at [1]
Garling J at [2]
Beech-Jones J at [123]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – conspiracy to supply a prohibited drug – whether trial Judge erred in failing to find a causal connection between mental health and emotional state and offending – where did not give evidence in the witness box – where no expert evidence supported causal connection – appeal dismissed
CRIMINAL LAW – trial Judge erroneously refers to standard non-parole period for offence – erroneous reference had no effect on sentence – no error established
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: BP v the Queen [2010] NSWCCA 159
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
HJ v R [2014] NSWCCA 21
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
McGrath v The Queen [2010] NSWCCA 48
Potts v R [2017] NSWCCA 10
R v Israil [2002] NSWCCA 255
Sutton v R [2016] NSWCCA 249
Vuni v The Queen [2006] NSWCCA 171
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Thi Kim Ngan Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Shridhar (Applicant)
N Williams (Respondent)
Solicitors:
R Van Houten (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/328878
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

30 October 2015

Before:

Cogswell SC DCJ

File Number(s):

2013/328878

Judgment

HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes.
GARLING J: Thi Kim Ngan Nguyen seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon her on 30 October 2015 in the District Court of New South Wales. She submits that the sentence was attended by error in two respects and that it was also manifestly excessive.

Charge

The applicant, to whom it will be convenient to refer as the appellant, because I am of the view that leave to appeal ought be granted, was charged with an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”) of conspiracy to supply a prohibited drug between 25 July 2013 and 20 August 2013 at Mascot. It was alleged that the between those dates, the appellant and three other co-accused, (Huynh, Ho and Xiao) conspired to supply 4.035kgs of pseudoephedrine. That quantity is an amount which is not less than the commercial quantity applicable to the drug.
By virtue of s 26 of the DMT Act, the maximum penalty prescribed for…

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 [2017] NSWCCA 39
Case: [2017] NSWCCA 39
Decision Date: 22 March 2017

CaseChat Overview and Summary

The appellant, Nguyen, appealed against his sentence for conspiracy to supply a prohibited drug. The issue before the court was whether the trial Judge erred in not finding a causal connection between the appellant's mental health and emotional state and his offending, and whether the trial Judge made an erroneous reference to the standard non-parole period for the offence. The court considered whether these errors warranted an appeal against the sentence. The court found that the trial Judge did not err in failing to find a causal connection between the appellant's mental health and emotional state and his offending, as the appellant did not give evidence in the witness box and there was no expert evidence to support such a connection. Furthermore, the court found that the trial Judge's erroneous reference to the standard non-parole period for the offence did not have any effect on the sentence imposed, and therefore no error was established. The appeal was dismissed.

The court considered the arguments presented by both parties and found that the trial Judge did not make any errors in his consideration of the appellant's sentence. The court found that the trial Judge was entitled to consider the appellant's mental health and emotional state, but that there was no evidence to support a causal connection between these factors and the offending. The court also found that the trial Judge's reference to the standard non-parole period for the offence was an error, but that this error did not have any effect on the sentence imposed. The court concluded that the appeal against sentence was without merit and dismissed the appeal.

Orders