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 sentenceLegislation 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 14Category: Principal judgment Parties: Thi Xet Nguyen (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr Wilson (Applicant)
Mr R Ranken (Respondent)
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
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HOEBEN CJ at CL: I agree with Lonergan J and the orders which she proposes.
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PRICE J: I agree with Lonergan J.
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LONERGAN J: The applicant seeks leave to appeal against a sentence imposed in the District Court by Girdham SC DCJ on 18 September 2018.
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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).
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The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units ($900,000).
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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.
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The applicant was sentenced to a period of imprisonment of 7 years expiring on 30…
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- AGLC
- Nguyen v The Queen [2020] NSWCCA 45
- Case
- [2020] NSWCCA 45
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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