Nguyen v The Queen - [2022] SASCA 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NGUYEN v THE QUEEN
[2022] SASCA 23
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
24 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug, two counts of possessing a controlled drug, and one count of possessing prescribed equipment, contrary to ss 32(1), 33L and 33LA of the Controlled Substances Act 1984 (SA) respectively.
The sentencing judge fixed a starting point of four years’ imprisonment for the first count. He reduced that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of three years, two months and 13 days. He imposed a single sentence of five months for the remaining counts. He reduced that by 30 per cent on account of the appellant’s guilty plea, resulting in a sentence of three months and 16 days.
The judge ordered the two sentences to be served wholly concurrently. After taking into account time spent in prison, this resulted in a head sentence of three years, two months and five days. He set a non-parole period of two years, six months and 17 days. This was four-fifths of the head sentence, the appellant being a serious repeat offender.
The appellant was diagnosed as both illiterate and innumerate. He was placed in the ‘Intellectual Disability’ (i.e. IQ>70) range of ‘intelligence’, and fell within 0.01 percentile of the age equivalent of population. In the opinion of his psychologist, the appellant represented one of the most extreme cases of poor cognitive ability that he had ever assessed. The appellant was also diagnosed with multiple mental health disorders, including PTSD, and a mixed personality disorder.
The issues on appeal are whether:
•the sentencing judge erred in applying the sentencing principles relevant to the appellant’s intellectual disability and mental impairment (Grounds 1 and 2);
•the sentencing judge erred in applying s 54(2) of the Sentencing Act 2017 (SA) (Ground 3); and

• the sentence imposed is manifestly excessive (Ground 4).
Held, per Bleby JA (Livesey P and Lovell JA agreeing), granting permission to appeal and allowing the appeal:
1.The judge did not appear to grapple with how the appellant’s intellectual disability and mental impairments may affect personal and general deterrence, or how the sentence might weigh more heavily on the appellant when compared with a person without his mental impairments. It cannot be inferred safely that the sentencing judge gave effect to the principles applicable on sentencing an offender with an intellectual disability or mental illness.
2.In describing the appellant’s personal circumstances as…

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 Queen

Details

AGLC: Nguyen v The Queen [2022] SASCA 23
Case: [2022] SASCA 23
Decision Date: 24 March 2022

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to trafficking in a large commercial quantity of a controlled drug, possessing a controlled drug on two occasions, and possessing prescribed equipment, contrary to the Controlled Substances Act 1984 (SA). The sentencing judge had imposed a head sentence of three years, two months and five days, with a non-parole period of two years, six months and 17 days, taking into account a guilty plea and the appellant's status as a serious repeat offender. The Court of Appeal considered the sentencing judge's application of sentencing principles in light of the appellant's diagnosed intellectual disability, significant cognitive impairment, and multiple mental health disorders.

The legal issues before the Court of Appeal were whether the sentencing judge erred in applying the principles relevant to the appellant's intellectual disability and mental impairment, whether the judge erred in applying section 54(2) of the Sentencing Act 2017 (SA), and whether the imposed sentence was manifestly excessive. The appellant's intellectual disability was described as being in the 'Intellectual Disability' range with an IQ above 70, placing him in the 0.01 percentile for age-equivalent cognitive ability, and his psychologist considered him one of the most extreme cases of poor cognitive ability assessed.

The Court of Appeal, per Bleby JA, found that the sentencing judge had not adequately grappled with how the appellant's intellectual disability and mental impairments might affect the principles of personal and general deterrence, nor how the sentence might weigh more heavily on him compared to an offender without such impairments. The Court also determined that the sentencing judge had erroneously foreclosed an inquiry into whether the appellant's exceptional personal circumstances, as identified by his psychologist, met the statutory description in s 54(2) by describing them as 'regularly, routinely or commonly encountered by the courts'. Consequently, the appeal was allowed, and the appellant was resentenced to a head sentence of two years, four months and 16 days, with a non-parole period of one year and six months, backdated to commence on 23 November 2020.

Orders

Orders of the court

Appeal against sentence.

The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug, two counts of possessing a controlled drug, and one count of possessing prescribed equipment, contrary to ss 32(1), 33L and 33LA of the Controlled Substances Act 1984 (SA) respectively.

The sentencing judge fixed a starting point of four years’ imprisonment for the first count. He reduced that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of three years, two months and 13 days. He imposed a single sentence of five months for the remaining counts. He reduced that by 30 per cent on account of the appellant’s guilty plea, resulting in a sentence of three months and 16 days.

The judge ordered the two sentences to be served wholly concurrently. After taking into account time spent in prison, this resulted in a head sentence of three years, two months and five days. He set a non-parole period of two years, six months and 17 days. This was four-fifths of the head sentence, the appellant being a serious repeat offender.

The appellant was diagnosed as both illiterate and innumerate. He was placed in the ‘Intellectual Disability’ (i.e. IQ>70) range of ‘intelligence’, and fell within 0.01 percentile of the age equivalent of population. In the opinion of his psychologist, the appellant represented one of the most extreme cases of poor cognitive ability that he had ever assessed. The appellant was also diagnosed with multiple mental health disorders, including PTSD, and a mixed personality disorder.

The issues on appeal are whether:

• the sentencing judge erred in applying the sentencing principles relevant to the appellant’s intellectual disability and mental impairment (Grounds 1 and 2);

• the sentencing judge erred in applying s 54(2) of the Sentencing Act 2017 (SA) (Ground 3); and

• the sentence imposed is manifestly excessive (Ground 4).

Held, per Bleby JA (Livesey P and Lovell JA agreeing), granting permission to appeal and allowing the appeal:

1. The judge did not appear to grapple with how the appellant’s intellectual disability and mental impairments may affect personal and general deterrence, or how the sentence might weigh more heavily on the appellant when compared with a person without his mental impairments. It cannot be inferred safely that the sentencing judge gave effect to the principles applicable on sentencing an offender with an intellectual disability or mental illness.

2. In describing the appellant’s personal circumstances as ‘regularly, routinely or commonly encountered by the courts’, the judge erroneously foreclosed an inquiry into whether the appellant’s personal circumstances, which were identified by his psychologist as exceptional, were so exceptional as to meet the statutory description in s 54(2).

3. The appellant is resentenced to a head sentence of two years, four months and 16 days, with a non-parole period of one year and six months.

Background

Background to the litigation

On 20 December 2021, Livesey P and David JA referred the question of permission to the Court of Appeal to be heard together with the appeal hearing.Background The appellant pleaded guilty to the following offences, contrary to the Controlled Substances Act 1984 (SA):·one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Act;·two counts of possessing a controlled drug, contrary to s 33L of the Act; and·one count of possessing prescribed equipment, contrary to s 33LA of the Act. The judge fixed a starting point of four years’ imprisonment for the first count. He reduced that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of three years, two months and 13 days. He imposed a single sentence of five months for the remaining counts. He reduced that by 30 per cent on account of the appellant’s guilty plea, resulting in a sentence of three months and 16 days. The judge ordered the two sentences to be served wholly concurrently, leaving a sentence of three years, two months and 13 days. He reduced that by eight days for time spent in custody, resulting in a head sentence of three years, two months and five days. He set a non-parole period of two years, six months and 17 days. This was four-fifths of the head sentence, the appellant being a serious repeat offender.Circumstances of the offending The essential facts of the offending are as follows. On 20 March 2020, at approximately 2:30 pm, following a report of an unknown vehicle in a driveway, police attended an unoccupied residence in Blair Athol. They located a white Mazda 3 sedan in which the appellant was the sole occupant. He was found sitting unconscious in the driver’s seat. On being woken, he told the police that the vehicle belonged to a friend. Police described him as being dazed and disoriented when raised. They also reported a strong smell of cannabis emanating from the vehicle. Police located a total of 40.90 kg of damp cannabis plant in large plastic bags in the boot of the vehicle and in a zip lock bag in the cabin. The appellant was sentenced on the basis that this constituted no less than 8.08 kg of dry, female flowering head. Police further located in the vehicle an ice pipe, two digital scales, and two mobile phones. They found on the appellant’s person a small quantity of methylamphetamine totalling 1 gram, and heroin totalling 2 grams. Police also retrieved dashcam footage. The footage shows the car being delivered by the rental company to the appellant’s residential address on the night of 18 March 2020. The appellant was seen in the footage taking possession of the vehicle and sitting in the driver's seat on two occasions. Later that evening, the appellant placed a large tarpaulin-like item in the boot of the car. Early the next day, he was seen sitting in the driver’s seat, exiting the vehicle and returning with two plastic bags. He placed them in the vehicle and drove to an address at Para Hills. He then disconnected the dashcam.The appellant’s personal circumstances

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would impose a non-parole period of one year and six months. In doing so I would emphasise the importance of the Parole Board and the Department for Correctional Services being made aware of the conclusions of Dr White. In the event of the appellant being eligible for release on parole, his success is very likely to depend on the supervision and supports that may be available for him to minimise his risk of recidivism.Conclusion I would make the following orders:1.Permission to appeal is granted on Grounds 1, 2 and 3.2.The appeal is allowed, and the sentence is set aside.3.The appellant is resentenced to a head sentence of two years, four months and 16 days, with a non-parole period of one year and six months. The head sentence and non-parole period are backdated to commence on 23 November 2020.

Ratio Decidendi

Legal Principle Established

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