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 offenderLegislation 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 15Category: Principal judgment Parties: Ngoc Canh Nguyen (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
R Steward (Applicant)
J Roy (Respondent)
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
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BASTEN JA: I agree with Hamill J.
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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…
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- AGLC
- Nguyen v The Queen [2019] NSWCCA 131
- Case
- [2019] NSWCCA 131
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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