Nguyen v The Queen - [2020] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2020] NSWCCA 45
Hearing dates: 21 August 2019
Date of orders: 25 March 2020
Decision date: 25 March 2020
Before: Hoeben CJ at CL [1]
Price J [2]
Lonergan J [3]
Decision:
(1) Allow the appeal and set aside the sentence imposed on 18 September 2018.

(2) Resentence the applicant to a non-parole period of 3 years from 31 August 2018 with a further term of 3 years, a total sentence of 6 years imprisonment.
(3) The applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.
Catchwords:
CRIME — drug offences — Commonwealth offences — import border controlled precursor — pseudoephedrine
SENTENCING — appeal against sentence — sentence contrary to law — whether sentencing judge mistook facts by finding the applicant imported a larger amount of precursor — ground made out — applicant resentenced
SENTENCING — relevant factors on sentence — factual basis for sentence — amount of precursor drug imported — finding inconsistent with agreed facts on sentence
Legislation Cited: Criminal Code (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Clinch v The Queen (1994) 72 A Crim R 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Le [2018] NSWDC 86
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category: Principal judgment
Parties: Thi Xet Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr Wilson (Applicant)
Mr R Ranken (Respondent)
Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2016/179699
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

18 September 2018

Before:

Girdham SC DCJ

File Number(s):

2016/179699

Judgment

HOEBEN CJ at CL: I agree with Lonergan J and the orders which she proposes.
PRICE J: I agree with Lonergan J.
LONERGAN J: The applicant seeks leave to appeal against a sentence imposed in the District Court by Girdham SC DCJ on 18 September 2018.
The applicant was sentenced after her trial which took place in August 2018. She was convicted of a single charge of importing a border-controlled precursor contrary to s 307.11(1) of the Criminal Code (Cth).
The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units ($900,000).
The sentencing hearing took place on 7 September 2018 and the sentencing judge reserved her decision to 18 September 2018. The sentence was backdated to commence on 31 August 2018 to reflect a short period of time that the applicant spent on remand after her arrest.
The applicant was sentenced to a period of imprisonment of 7 years expiring on 30…

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 45
Case: [2020] NSWCCA 45
Decision Date: 25 March 2020

CaseChat Overview and Summary

The case of Nguyen v The Queen involved the applicant, Nguyen, who had been convicted of drug offences under the Commonwealth Criminal Code. Nguyen was charged with importing a border controlled precursor, specifically pseudoephedrine, and was sentenced by the trial judge. Nguyen appealed against his sentence, arguing that the sentencing judge had erred in finding that he had imported a larger amount of the precursor than was actually agreed upon in the facts. The appeal was heard by the court, which was tasked with determining whether the sentencing judge had indeed made an error in this regard, and if so, what the appropriate remedy would be.

The primary legal issue before the court was whether the sentencing judge had made an error in the factual findings regarding the amount of pseudoephedrine imported by the applicant. The court needed to consider whether this error was significant enough to warrant a re-sentencing of the applicant. In addressing this issue, the court also had to consider the principles of sentencing and the factors that should be taken into account when determining an appropriate sentence for drug importation offences.

In delivering the decision, the court found that the sentencing judge had indeed erred in finding that the applicant had imported a larger amount of the precursor than was agreed upon in the facts. This error was significant enough to warrant a re-sentencing of the applicant. The court emphasised that the factual basis for the sentence was crucial and that any finding inconsistent with the agreed facts could lead to a sentence being considered contrary to law. As a result, the court set aside the original sentence and remitted the matter to the trial judge for re-sentencing. The court provided clear guidance on the principles of sentencing and the relevant factors that should be taken into account when determining an appropriate sentence for drug importation offences.

Orders