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Nguyen v The Queen

Nguyen v The Queen

Case [2019] NSWCCA 213 14 August 2019

Appeal

Sentencing

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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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 5
Cases 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 353
Category: Principal judgment
Parties: Van Canh Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Hallas (Applicant)
Mr D Patch (Respondent)
Solicitors:
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)

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).
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.
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…

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 [2019] NSWCCA 213
Case: [2019] NSWCCA 213
Decision Date: 14 August 2019

CaseChat Overview and Summary

In the matter of Nguyen v The Queen, the appellant, Nguyen, sought to appeal the sentence imposed upon him by the lower court, arguing that it was manifestly excessive and that procedural fairness was denied. The dispute centred on the severity of the sentence, procedural fairness in the sentencing process, and whether the court had erred in not recognising special circumstances. The appeal was heard in the High Court of Australia, which reviewed the arguments presented and determined whether the grounds for appeal were valid.

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