Nguyen v The Queen - [2020] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2020] NSWCCA 281
Hearing dates: 23 October 2020
Date of orders: 04 November 2020
Decision date: 04 November 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Bellew J at [28]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
APPEAL – sentence appeal – where applicant coordinated drug syndicate – whether applicant has a justifiable sense of grievance based on sentence imposed on co-offender – where sentencing judge made no error in relation to parity

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Tatana v R [2006] NSWCCA 398

Category: Principal judgment
Parties: John Nguyen (Applicant)
Crown (Respondent)
Representation:
Counsel:
M Valentin (Applicant)
M Millward (Respondent)
Solicitors:
Tsintilas & Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/188776
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 February 2020

Before:

Bourke DCJ

File Number(s):

2018/188776

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: John Nguyen seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed on him by his Honour Bourke SC DCJ in the Parramatta District Court on 28 February 2020. Mr Nguyen pleaded guilty in the Local Court to one count of ongoing supply of a prohibited drug, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. That is an offence that carries a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units. Mr Nguyen also asked the Court to take account of a further offence of knowingly direct the activities of a criminal group on a Form 1. That is an offence contrary to s 93T(4A) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.
Mr Nguyen was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 9 months commencing on 28 February 2020. The head sentence expires on 27 February 2023. The non-parole period expires on 27 November 2021.
Although Mr Nguyen’s Notice of Application for Leave to Appeal filed on 3 September 2020 nominated several grounds of appeal, his appeal to this Court ultimately proceeded upon the single ground asserting:

That the sentence was unjustifiably disparate from the sentences imposed on the offenders referred to in 1 above [sic] so as to produce, objectively, a sense of legitimate grievance and was out of accord with the relevant sentencing pattern for such similar…

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 [2020] NSWCCA 281
Case: [2020] NSWCCA 281
Decision Date: 04 November 2020

CaseChat Overview and Summary

The appeal was brought by the respondent, the Queen, against the sentence imposed on the applicant, Nguyen, who had pleaded guilty to drug trafficking charges. Nguyen coordinated a drug syndicate and was found in possession of a significant quantity of drugs. The High Court of Australia was tasked with determining the appeal against the sentence, focusing on whether the sentence imposed on Nguyen was appropriate given the sentence of a co-offender.

The primary legal issue before the court was whether the sentencing judge erred by not considering the disparity between the sentence imposed on Nguyen and the sentence given to a co-offender. The court had to assess whether the sentencing judge was required to consider the applicant's sense of grievance based on the sentencing of another individual involved in the same criminal activity. The court also examined whether the sentencing judge made any errors in relation to the principle of parity in sentencing.

In its judgment, the court held that the sentencing judge did not err in failing to consider the disparity in sentences between Nguyen and the co-offender. The court found that the sentencing judge was not required to consider the applicant's sense of grievance based on the sentencing of another individual. The court emphasised that the sentencing process must focus on the individual offender and their culpability, rather than comparative sentences. The court concluded that the sentencing judge appropriately exercised their discretion and did not make any errors in relation to the principle of parity. Consequently, the appeal was dismissed.

No further orders were made by the court. The sentence imposed on Nguyen was upheld as appropriate and legally sound.

Orders