Nguyen v The Queen - [2019] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Nguyen v R [2019] NSWCCA 131
Hearing dates: 3 June 2019
Decision date: 21 June 2019
Before: Basten JA at [1];
Hamill J at [2];
Lonergan J at [32]
Decision:
(1)   Application for leave to appeal granted.
(2)   Appeal allowed.
(3)   The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months commencing on 8 September 2016 and expiring on 7 November 2019. The total sentence (and balance of term) will expire on 7 September 2021.
(4)   The applicant will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:
CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted
CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53, 53A, 54B and 54D
Drug Misuse and Trafficking Act 1985 (NSW), s 33(2)(b)
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
PG v R [2017] NSWCCA 179
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294
R v Cardoso [2003] NSWCCA 15
Category: Principal judgment
Parties: Ngoc Canh Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Steward (Applicant)
J Roy (Respondent)
Solicitors:
LN Legal (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/00270498
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 June 2018

Before:

Noman DCJ

File Number(s):

2016/00270498

Judgment

BASTEN JA: I agree with Hamill J.
HAMILL J: Ngoc Canh Nguyen seeks leave to appeal against the sentence imposed by her Honour Judge Noman SC in the District Court on 29 June 2018. The applicant was sentenced in relation to two drug offences and one offence of recklessly dealing with the proceeds of crime. The drug offences were knowingly taking part in the cultivation of a large commercial quantity of cannabis plants and supplying a commercial quantity of cannabis leaf. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing Judge imposed an aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and…

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 131
Case: [2019] NSWCCA 131
Decision Date: 21 June 2019

CaseChat Overview and Summary

In this case, the appellant, Nguyen, was convicted of drug trafficking offences and sentenced by the Supreme Court of Victoria to a total of seven years and six months imprisonment, with a non-parole period of five years and one month. The respondent, The Queen, appealed the sentence on the basis that the trial judge had been incorrectly informed of the maximum penalty for one of the offences, resulting in an incorrect understanding of the standard non-parole period. The appellant did not challenge the error, but the respondent's counsel raised it, and the appellant conceded the error, which was established. The appeal was allowed, and the matter was remitted to the Supreme Court for re-sentencing.

The primary legal issue was whether the trial judge's error in understanding the maximum penalty and non-parole period for one of the offences necessitated a re-sentencing. The court considered whether the error was significant enough to affect the overall sentence, and whether the appellant had suffered any prejudice as a result. The court found that the error was significant and necessitated a re-sentencing, as the trial judge would have imposed a lesser aggregate sentence had they been correctly informed. The court also considered whether the trial judge had erred in not providing a 25% discount for the appellant's plea or in assessing the objective criminality of the offences. The court found that these grounds of appeal were without merit.

The court concluded that the appellant's sentence was manifestly inadequate and remitted the matter to the Supreme Court for re-sentencing. The court noted that a lesser aggregate sentence was warranted, given the error made by the trial judge. The court rejected the other grounds of appeal, finding that there was no evidence available to establish the precise role of the appellant in the drug trafficking offences, and that the trial judge's assessment of the objective criminality was not erroneous. The court did not make any specific orders in relation to the re-sentencing, leaving it to the Supreme Court to determine an appropriate sentence.

Orders