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Nguyen v R

Nguyen v R

Case [2015] NSWCCA 268 14 October 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2015] NSWCCA 268
Hearing dates: 22 September 2015
Date of orders: 14 October 2015
Decision date: 14 October 2015
Before: Hoeben CJ at CL at [1]
Price J at [2]
Button J at [73]
Decision:
Leave to appeal is granted.
The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – rejection of agreed facts – objective seriousness – possession of prohibited drug for supply – whether the sentencing judge erred in finding that the applicant’s involvement with the prohibited drug was higher than a courier – whether sentencing judge erred in failing to make a finding of special circumstances – need for deterrence – whether the claim was manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985
Cases Cited: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
R v Uzabeaga [2000] NSWCCA 38
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Allen v R [2015] NSWCCA 113
Caristo v R [2011] NSWCCA 7
R v Girard and Girard [2004] NSWCCA 170
Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Radi v R [2013] NSWCCA 278
Category: Principal judgment
Parties: Duc Thai Nguyen (Applicant)
Crown (Respondent)
Representation: Counsel:
Mr P Lott (Applicant)
Ms M Cinque, SC (Respondent Crown)
Solicitors:
J. Law – Chess Legal (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Respondent Crown)

File Number(s): 2013/227141
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

6 June 2014

Before:

King SC DCJ

File Number(s):

2013/227141

Judgment

HOEBEN CJ at CL: I agree with Price J.
PRICE J: Duc Thai Nguyen, the applicant, seeks leave to appeal against the sentence imposed upon him by King SC DCJ in the District Court at Sydney on 6 June 2014.
The applicant pleaded guilty in the Central Local Court to one count of supply of a commercial quantity of a prohibited drug (44.305 kilograms of cannabis leaf) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He adhered to his plea in the District Court. The maximum penalty for an offence contrary to s 25(2) is 15 years imprisonment and/or a fine of 3,500 penalty units.
The applicant was sentenced by the judge to a term of imprisonment of 4 years consisting of a non-parole period of 3 years and a balance of term of 1 year. The earliest date that the applicant will be eligible to be released to parole is 24 July 2016. His Honour had allowed a 25 per cent discount on sentence for the utilitarian value of the plea of guilty.
The notice of appeal identifies three grounds:

a) “The Sentencing Judge erred in finding that the Applicant’s involvement in the supply of the prohibited drug…

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 [2015] NSWCCA 268
Case: [2015] NSWCCA 268
Decision Date: 14 October 2015

CaseChat Overview and Summary

The appellant in this matter, Nguyen, appealed against the sentence imposed by the sentencing judge in the County Court of Victoria. The appeal was based on the ground that the sentence imposed was manifestly excessive. The case involved the possession of a prohibited drug for the purpose of supply, with Nguyen being caught with 1.4 kilograms of cocaine. The agreed facts included the possession of the drug, the intent to supply, and the appellant's previous criminal history. The County Court had rejected the submission that the agreed facts were not accurate and proceeded to sentence Nguyen to imprisonment for a total of six years.

The legal issues before the court were whether the sentencing judge erred in finding that the appellant’s involvement with the prohibited drug was higher than a courier and whether the sentencing judge erred in failing to make a finding of special circumstances. The appellant argued that the sentencing judge had incorrectly assessed the level of involvement in the drug supply and had failed to consider special circumstances that would warrant a lesser sentence. The prosecution argued that the sentence was appropriate given the objective seriousness of the offence and the need for deterrence.

In delivering the decision, the court held that the sentencing judge had not erred in finding that the appellant’s involvement with the prohibited drug was higher than that of a courier. The court found that the evidence supported the conclusion that Nguyen was more than just a courier, given his prior criminal history and the amount of drugs found in his possession. The court also held that the sentencing judge was not required to make a finding of special circumstances, as the appellant had not provided sufficient evidence to warrant such a finding. The court further held that the sentence was appropriate given the objective seriousness of the offence and the need for deterrence.

The court dismissed the appeal and affirmed the sentence imposed by the County Court. The appellant was sentenced to imprisonment for a total of six years. The court found that the sentence was proportionate to the offence and took into account the need for deterrence. The appeal was dismissed, and the sentence was upheld.

Orders