Nguyen v Regina - [2007] NSWCCA 226

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Nguyen v Regina [2007] NSWCCA 226

FILE NUMBER(S):
569/2007

HEARING DATE(S): 13 July 2007

JUDGMENT DATE: 30 July 2007

PARTIES:
Dinh Minh Nguyen - Applicant
The Crown - Respondent

JUDGMENT OF: Giles JA Latham J Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 984/04

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

LOWER COURT DATE OF DECISION: 27 August 2004 (Sentence)

COUNSEL:
P Hamill SC - Applicant
D G Staehli SC - Respondent Crown

SOLICITORS:
Hardinlaw - Applicant
Commonwealth Director of Public Prosecutions - Crown

CATCHWORDS:
Sentencing - importations of drugs - various participants - various charges - other participants sentenced first - applicant then sentenced - other participants' sentences reduced on appeal - whether was a justified disparity grievance - reductions were to bring parity with applicant's sentence - complaint of disparity did not compare like with like - no justified grievance - no error in regard to uncharged criminal conduct - sentence not excessive.

LEGISLATION CITED:
Customs Act 1901, s 233B
Drug Misuse and Trafficking Act 1985, s 25(2)

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606;
Postiglione v The Queen (1996) 189 CLR 295;
R v Ismunandar (2002) 136 A Crim R 206'
R v Li [2005] NSWCCA 154;
R v Nguyen, Pham, To and Vu [2004] NSWSC 144;
R v Nguyen, Pham, Vu and To (2005) 157 A Crim R 80;
Weininger v The Queen (2003) 212 CLR 629.

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 569/2007
DC 984/04
GILES JA
LATHAM J
MATHEWS AJ
Monday 30 July 2007

Dinh Minh NGUYEN v REGINA

Judgment

GILES JA: The applicant pleaded guilty to three charges of offences under s 233B of the Customs Act 1901 and one charge of an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985. He was sentenced by Shillington DCJ to an effective overall sentence of 24 years with non-parole period of 18 years 6 months. He applied for leave to appeal against sentence on the grounds -
(1)that he has a justifiable sense of grievance as a result of the unfair disparity and lack of due proportion between the sentence imposed on him and those imposed on his co-offenders;
(2)that the judge erred in taking into account uncharged and unproven acts of criminality; and
(3)that the sentence is manifestly excessive in all the circumstances and a different less severe sentence is warranted and ought to have been imposed.
The offences and sentences
The offences under the Customs Act were offences of being knowingly concerned in the importation of prohibited imports.
The first of the offences was that between 23 June and 16 October 2001 the applicant was knowingly concerned in the importation of a traffickable quantity (38.1 grams) of heroin. The applicant was sentenced to a fixed term of imprisonment for 8 years commencing on 16 October 2001, the date he was…

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 Regina

Details

AGLC: Nguyen v Regina [2007] NSWCCA 226
Case: [2007] NSWCCA 226
Decision Date: 30 July 2007

CaseChat Overview and Summary

The matter before the court involved a defendant, Nguyen, who was convicted of drug importation. The case was appealed against sentence, with Nguyen arguing that the disparity between his sentence and those of other participants in the drug importation scheme was unjustified. Other participants had previously been sentenced, but their sentences were later reduced on appeal. Nguyen claimed that this reduction created an unjustifiable disparity between his sentence and theirs, arguing that it should have been aligned with his own sentence.

The legal issues before the court were whether the disparity in sentencing between Nguyen and the other participants was justified and whether the sentence imposed on Nguyen was excessive. Additionally, the court had to consider whether the consideration of uncharged criminal conduct during sentencing was appropriate.

The court found that the complaint of disparity did not compare like with like and that there was no justified grievance. The court explained that the reductions to the other participants' sentences were made to bring them into parity with Nguyen's sentence, rather than to create a disparity. The court also found that there was no error in regard to the uncharged criminal conduct, as it was relevant to the sentencing process. The court concluded that the sentence imposed on Nguyen was not excessive and was appropriate given the nature and circumstances of the offence.

The court upheld the sentence imposed on Nguyen, finding that there was no error in the sentencing process and that the sentence was appropriate. The appeal was dismissed, and Nguyen's conviction and sentence remained in place.

Orders