Nguyen v The King - [2023] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nguyen v R [2023] NSWCCA 240
Hearing dates: 20 September 2023
Date of orders: 6 October 2023
Decision date: 06 October 2023
Before: Adamson JA at [1]
Price J at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – recklessly dealing in proceeds of crime – where offence involved only the moving of money on one day – where offender had been to premises on six prior occasions – whether sentencing judge erred by relying on prior attendance – prior attendance informed overall assessment of criminality – where co-offender charged additionally with two drug trafficking offences – where roles of the two offenders differed for common offence and different subjective factors existed – where sentencing judge gave express consideration to issue of parity – no justifiable sense of grievance – appeal dismissed
SENTENCING – appeals against sentence – powers of court – Crimes Act 1914 (Cth) s 19AHA – where sentencing judge erroneously amended sentencing order – whether Court of Criminal Appeal can amend clerical error of another court – held Court does not have power under Supreme Court (Criminal Appeal Rules) 2021 (NSW) – application to correct must be made to District Court

Legislation Cited:
Crimes Act 1914 (Cth) ss 16BA, 19AHA
Criminal Appeal Act 1912 (NSW) s 6
Criminal Code (Cth) ss 400.3(2A), 400.6
Supreme Court (Criminal Appeal Rules) 2021 (NSW) r 5.4

Cases Cited:
England v R; Phanith v R [2009] NSWCCA 274
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mulato v Regina [2006] NSWCCA 282
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Clarke [2013] NSWCCA 260
R v O’Donoghue (1988) 34 A Crim R 397
R v Perry; R v Perry [2022] SASCA 51
Regina v Rick Barry Swan [2006] NSWCCA 47
Smith (a pseudonym) v R [2022] NSWCCA 123

Texts Cited:
Nil

Category: Principal judgment
Parties: Sam Nguyen (Applicant)
The King (Respondent)
Representation:
Counsel:
P Lange (Applicant)
L Fernandez (Respondent)
Solicitors:
Criminal Defence Group Pty Ltd (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/243367
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

08 December 2022

Before:

Hanley SC DCJ

File Number(s):

2021/243367

HEADNOTE

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

The applicant pleaded guilty to one offence of recklessly dealing in proceeds of crime contrary to s 400.3(2A)(d) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for 2 years and 6 months, to be released after a period of 1 year and 3 months upon entering into a recognisance to be of good behaviour for three years.

A co-offender, Mr Giang, was also charged with an offence contrary to…

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 [2023] NSWCCA 240
Case: [2023] NSWCCA 240
Decision Date: 06 October 2023

CaseChat Overview and Summary

In the case of Nguyen v The King, the appellant was convicted of recklessly dealing in the proceeds of crime. The conviction arose from the movement of money on a single day. The appellant had visited the premises in question on six occasions prior to the day of the offence. The appeal centred on whether the sentencing judge had erred by considering the appellant's prior attendance at the premises, and if this influenced the overall assessment of the criminality. The co-offender had also been charged with two additional drug trafficking offences, and the roles of the two offenders differed both in the common offence and in the subjective factors considered. The sentencing judge had expressly taken into account the issue of parity between the offenders, and the court found that there was no justifiable sense of grievance. The appeal was dismissed.

The central legal issues were whether the sentencing judge had erred by considering the appellant's prior attendance at the premises, and if this influenced the overall assessment of the criminality. Additionally, the court considered whether the Court of Criminal Appeal had the power to amend a clerical error made by another court. The court examined the relevant statutory provisions, including the Crimes Act 1914 (Cth) s 19AHA, and the Supreme Court (Criminal Appeal Rules) 2021 (NSW). The court found that the sentencing judge's consideration of the prior attendance was appropriate, and that the Court of Criminal Appeal did not have the power to amend the clerical error. Instead, any application to correct such an error must be made to the District Court.

Orders