Nguyen v The King - [2024] NSWCCA 231

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2024] NSWCCA 231
Hearing dates: 11 October 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Before: Wright J at [1];
Cavanagh J at [79];
Yehia J at [80]
Decision:
(1) Grant the applicant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
SENTENCING – objective seriousness – whether judge erred in finding that offender was a “trusted middle-man” in a hierarchy in the absence of details of the hierarchy – sentencing judge’s finding open on evidence
SENTENCING – whether aggregate sentence manifestly excessive – whether indicative sentences were individually excessive leading to the aggregate sentence being manifestly excessive – indicative sentences not individually excessive – aggregate sentence reflected totality of criminality involved and was not unreasonable or plainly unjust – aggregate sentence not manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), s 193C(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 53A(2)(b), 54A(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 25(2)

Cases Cited:
DL v R [2020] NSWCCA 164
DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2011] NSWCCA 194
Du Plessis v R [2024] NSWCCA 164
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kemp v R [2014] NSWCCA 153
Kurniawan v R [2017] NSWCCA 171
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Edwards (1996) 90 A Crim R 510
R v Nguyen [2023] NSWDC 288

Category: Principal judgment
Parties: Joey Nguyen (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
C Curtis (Respondent)
Solicitors:
LY Solicitors (Applicant)
C Curtis (Respondent)

File Number(s): 2022/00024184
Decision under appeal

Court or tribunal:

District

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 288

Date of Decision:

23 June 2023

Before:

Judge Bourke SC

File Number(s):

2022/00024184

HEADNOTE

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

The applicant pleaded guilty in the Local Court to four charges: two charges of supplying a large commercial quantity of the prohibited drug, heroin; one charge of supplying a commercial quantity of the prohibited drug, pseudoephedrine; and, one charge of manufacturing more than the indictable quantity of the prohibited drug, methylamphetamine. The applicant also asked that three further offences be taken into account on a Form 1.

On 3 July 2023, the applicant was sentenced by Judge Bourke SC in the District Court to an aggregate sentence of imprisonment for 11 years 6 months, commencing 15 October 2022 and expiring on 14 April 2034, with a non-parole period of 7 years 6 months, expiring on 14 April 2030.

The applicant sought leave to appeal against his sentence. There were two grounds of appeal. First, that his Honour erred in finding the applicant to be…

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 [2024] NSWCCA 231
Case: [2024] NSWCCA 231
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the case of Nguyen v The King, the respondent was convicted of various drug-related offences and was sentenced to a total of eight years imprisonment. The appeal was against the sentence, specifically questioning whether the sentencing judge erred in finding the respondent to be a "trusted middle-man" in a drug distribution hierarchy and whether the aggregate sentence was manifestly excessive. The respondent argued that the lack of details about the hierarchy meant the judge's finding was not supported by the evidence. Additionally, the respondent contended that the aggregate sentence was manifestly excessive, as it resulted from the cumulative effect of individual indicative sentences which were also excessive.

The court examined whether the sentencing judge's finding regarding the respondent's role in the hierarchy was supported by the evidence presented. The court found that the evidence was sufficient to support the judge's conclusion, even in the absence of detailed information about the hierarchy. The court also considered whether the aggregate sentence was manifestly excessive, taking into account the individual indicative sentences and the totality of the criminality involved. The court found that the individual sentences were not excessive and that the aggregate sentence appropriately reflected the seriousness of the respondent's criminal conduct.

Ultimately, the court found that the sentencing judge's finding about the respondent's role in the drug distribution hierarchy was open to the evidence presented. The court also determined that the aggregate sentence was not manifestly excessive, as it was a fair reflection of the totality of the respondent's criminal conduct. The appeal against the sentence was dismissed.

The court did not make any orders regarding the sentence, affirming the original sentence handed down by the lower court.

Orders