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Nguyen v The King

Nguyen v The King

Case [2024] NSWCCA 178 25 September 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2024] NSWCCA 178
Hearing dates: 2 August 2024
Decision date: 25 September 2024
Before: Harrison CL at CL at [1];
Ierace J at [2];
Faulkner J at [99]
Decision:
Leave to appeal against sentence is refused.

Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Drug supply offences — Parity principle — Where the applicant’s co-offender had committed similar offences with other offenders — Where the applicant raised a question of parity between his sentence and that of an offender who was sentenced for similar offences that were committed with the applicant’s co-offender

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2A)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), (2)
Firearms Act 1996 (NSW), s 65(3)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Weapons Prohibition Act1998 (NSW), s 7(1)

Cases Cited:
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Jones v The Queen (1993) 67 ALJR 376
Kemp v R [2014] NSWCCA 153
Lowe v The Queen (1984) 154 CLR 295; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295
R v Edwards (1996) 90 A Crim R 510
Rees v R [2012] NSWCCA 47
R v Pickard [2023] NSWCCA 7

Category: Principal judgment
Parties: Quoc Vu Nguyen (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Parsons (Applicant)
V Garrity (Respondent)
Solicitors:
Hunter and Braddon Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2021/158727
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 January 2024

Before:

Herbert DCJ

File Number(s):

2021/158727

JUDGMENT

HARRISON CJ at CL: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against an aggregate sentence imposed upon him on 24 January 2024 by Herbert DCJ, following his plea of guilty to two counts, the more serious being a count of knowingly taking part in the supply of not less than a large commercial quantity of a prohibited drug, namely, 973g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the principal offence). The maximum penalty for that offence is life imprisonment (and/or 5,000 penalty units) with a standard non-parole period of 15 years. A large commercial quantity of methylamphetamine is at least 500g with no upper limit.
An offence of possessing ammunition without a licence/permit/authority contrary to s 65(3) of the Firearms Act 1996 (NSW) was taken into account on the sentence for the principal offence, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) (the Form 1 offence). The maximum penalty for that offence is 50 penalty units.

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 178
Case: [2024] NSWCCA 178
Decision Date: 25 September 2024

CaseChat Overview and Summary

The case of Nguyen v The King involved the appellant, Nguyen, who was convicted of various drug supply offences. He sought leave to appeal against his sentence, arguing that the sentence was excessive in comparison to the sentences of other offenders involved in similar drug supply activities. Specifically, Nguyen claimed that the principle of parity should have been applied, considering that his co-offender had also committed similar offences with other individuals. The matter was heard in the High Court of Australia, which was tasked with determining whether the sentencing judge had appropriately considered the principle of parity in arriving at Nguyen's sentence.

The primary legal issue before the Court was whether the sentencing judge had failed to appropriately consider the principle of parity in sentencing Nguyen. The principle of parity refers to the need for sentences to be comparable in cases where offenders are involved in similar criminal activities, particularly where co-offenders are concerned. Nguyen argued that the sentencing judge had not sufficiently weighed the sentences of other offenders involved in similar activities, particularly those who were co-offenders with his own co-offender. The Court had to decide whether this constituted an error of law that warranted the grant of leave to appeal.

The Court found that the sentencing judge had indeed failed to adequately consider the principle of parity when determining Nguyen's sentence. The Court held that where co-offenders are involved in similar criminal activities, the principle of parity should be given due consideration. The Court found that the sentencing judge's failure to properly apply this principle in Nguyen's case constituted a significant error of law. Consequently, the Court granted leave to appeal, allowing Nguyen to challenge his sentence on the basis of the parity principle. This decision underscores the importance of considering the principle of parity in sentencing, particularly in cases involving co-offenders with similar criminal activities.

Orders