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Nguyen v The King

Nguyen v The King

Case [2025] NSWCCA 42 26 March 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2025] NSWCCA 42
Hearing dates: 21 February 2025
Date of orders: 26 March 2025
Decision date: 26 March 2025
Before: Davies J at [1]
Dhanji J at [2]
Huggett J at [57]
Decision:
(1) Leave to appeal is granted.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – cultivation of prohibited plants by enhanced indoor means – pervert the course of justice – whether denial of procedural fairness – where sentencing judge rejected evidence in psychologist’s report – where no indication issue taken – psychologist’s conclusion a matter of speculation – inherently implausible – no practical injustice – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 319
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse andTrafficking Act 1985 (NSW), s 23(2)(a)

Cases Cited:
Chow v Director of Public Prosecutions(NSW) (1992) 28 NSWLR 593
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Hone v Western Australia [2007] WASCA 283; 179 A Crim R 138
Klewer v National Disability Insurance Agency [2023] FCA 630
McLaughlin v R [2025] NSWCCA 13
O’Neil-Shaw v The Queen [2010] NSWCCA 42
R v Klamo (2008) 18 VR 644; [2008] VSCA 75;
R v Nguyen [2024] NSWDC 273
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Rodriguez [2010] NSWSC 198
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Reberger v R [2011] NSWCCA 132
Richards v R [2023] NSWCCA 264
Weir v Regina [2011] NSWCCA 123

Category: Principal judgment
Parties: Huy Hong An Nguyen (Applicant)
Rex (Respondent)
Representation:
Counsel:
TF Woods (Applicant)
T Abdulhak (Respondent)
Solicitors:
KPT Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00208620
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Nguyen [2024] NSWDC 273

Date of Decision:

5 July 2024

Before:

Abadee DCJ

File Number(s):

2021/00208620

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Huy Hong An Nguyen, was sentenced with respect to two counts of knowingly taking part in the cultivation of a number of prohibited plants in an amount not less than the applicable commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), and doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The applicant was afforded a combined discount of 20 percent with respect to each offence, comprised of 10 percent for his pleas of guilty, which were entered before and during…

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 The King

Details

AGLC: Nguyen v The King [2025] NSWCCA 42
Case: [2025] NSWCCA 42
Decision Date: 26 March 2025

CaseChat Overview and Summary

Nguyen was convicted of cultivating prohibited plants by enhanced indoor means and perverting the course of justice. He appealed against his sentence, contending that the sentencing judge erred in rejecting the evidence of a psychologist’s report. Nguyen argued that the rejection of the report amounted to a denial of procedural fairness and resulted in a sentence that was manifestly excessive. The appeal raised questions about the role and weight of expert evidence in sentencing and the procedural fairness owed to the appellant.

The court examined whether the sentencing judge had erred in disregarding the psychologist’s report and whether this amounted to a denial of procedural fairness. The report was not challenged on any basis of reliability or relevance. However, the court found that the psychologist’s conclusion was speculative and inherently implausible, and the sentencing judge was entitled to reject it. The court also held that the sentence imposed was not manifestly excessive and that no practical injustice resulted from the rejection of the report. The appeal was allowed, but the conviction and sentence were affirmed.

The court held that the sentencing judge was entitled to reject the psychologist’s report as it was speculative and implausible. The court found that there was no procedural unfairness as the issue of the psychologist’s report was not formally raised before the sentencing judge. The court also held that the sentence imposed was not manifestly excessive and that no practical injustice resulted from the rejection of the report. The appeal was dismissed, and the conviction and sentence were affirmed.

Orders