Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nguyen v R [2019] NSWCCA 213 Hearing dates: 14 August 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Before: Brereton JA at [1]
Johnson J at [29]
Lonergan J at [33]Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.Catchwords: CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentence was manifestly excessive – whether denial of procedural fairness – whether error in not finding special circumstances – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Criminal Appeal Act 1912 (NSW) s 5Cases Cited: Allen v R [2015] NSWCCA 113
Caristo v R [2011] NSWCCA 7
Clarke v R [2009] NSWCCA 49
Hughes v R [2018] NSWCCA 2
Jiang v R [2010] NSWCCA 277
MD v R [2015] NSWCCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Cramp [2004] NSWCCA 264
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353Category: Principal judgment Parties: Van Canh Nguyen (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr A Hallas (Applicant)
Mr D Patch (Respondent)
Tran Solicitors & Attorneys (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/369736 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 14 December 2016
- Before:
- English DCJ
- File Number(s):
- 2015/369736
Judgment (Ex Tempore)
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BRERETON JA: The applicant Van Canh Nguyen pleaded guilty to one count of manufacture large commercial quantity of prohibited drugs, namely 706.8 grams of methylamphetamine, and was sentenced in the District Court at Campbelltown to imprisonment for a non-parole period of 5 years, 7 months and 15 days, commencing on 16 December 2015 and expiring on 30 July 2021, with a total term of 7 years and 6 months, expiring on 15 June 2023. From that sentence he seeks leave to appeal to this Court, pursuant to the Criminal Appeal Act 1912 (NSW) s 5(1)(c).
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The offence was committed on 16 December 2015, on which date the applicant was taken into custody and charged. On 1 September 2015 the threshold of the large commercial quantity had been reduced from 1 kilogram to 500 grams. The maximum penalty for the offence is life imprisonment, and the standard non-parole period is 15 years. Had the offence been committed prior to the amendment on 1 September 2015, the maximum penalty for the same quantity would have been 20 years, and the standard non-parole period 10 years.
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The sentence proceedings were conducted on agreed facts. The applicant did not give evidence, but tendered a psychiatrist’s report. The agreed facts recorded, at para 7:
“A forensic chemist examined the evidence and found a total amount of 415.8 grams of pure methylamphetamine. In total the substances found containing any methylamphetamine weighed many kilograms, although the purity of the majority of the substances was very low. 706.8 grams of the total amount of the substances contained methylamphetamine at over…
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- AGLC
- Nguyen v The Queen [2019] NSWCCA 213
- Case
- [2019] NSWCCA 213
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved whether the sentence was manifestly excessive, whether there had been a denial of procedural fairness, and whether the lower court had erred in not finding special circumstances that could have warranted a lesser sentence. The appellant argued that the sentence was disproportionately harsh and that there were procedural failings that prejudiced the fairness of the sentencing process. Additionally, the appellant contended that there were special circumstances that should have been recognised by the lower court.
The court meticulously reviewed the arguments and the evidence presented. It found that the sentence was not manifestly excessive, considering the nature and circumstances of the offence. The court also determined that there was no denial of procedural fairness and that the lower court had appropriately considered the mitigating factors presented. The High Court held that the lower court had not erred in not finding special circumstances, as the evidence did not sufficiently support the existence of such circumstances. Consequently, the appeal was dismissed, affirming the original sentence.
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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