Nguyen v The Queen - [2019] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nguyen v R [2019] NSWCCA 44
Hearing dates: 1 March 2019
Date of orders: 01 March 2019
Decision date: 13 March 2019
Before: Leeming JA at [1];
Harrison J at [41];
Davies J at [42]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – dealing with money reasonably suspected of being proceeds of crime – Criminal Code (Cth) s 400.9(1) – whether sentencing judge failed to have regard to utilitarian benefit of guilty plea – whether error in determination of objective criminality – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16AC
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code (Cth), s 400.9
Cases Cited: EF v R [2015] NSWCCA 36
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Bugeja [2001] NSWCCA 196
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Principal judgment
Parties: Linda Lien Nguyen (Applicant)
Crown (Respondent)
Representation:
Counsel:

M Ramage QC (Applicant)
A Avery-Williams (Respondent)

Solicitors:
AKN & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2015/29930
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Division

Citation:

None

Date of Decision:

03 July 2018

Before:

Arnott DCJ

File Number(s):

2015/29930

Judgment

LEEMING JA: Ms Linda Lien Nguyen seeks leave to appeal from a sentence of 14 months imprisonment, with release after 9 months on a recognisance to be of good behaviour for the balance of the term, following her plea of guilty to one offence of dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth). The sentence was imposed on 3 July 2018. The nine month period of imprisonment will expire on 2 April 2019. Ms Nguyen’s notice of application for leave to appeal was only filed on 4 December 2018 (after more than half of the 9 month period had been served). Her appeal was called over on 13 December 2018 and allocated a date for hearing on 1 March 2019. This Court had the benefit of written submissions provided in advance of the hearing, and full oral submissions on the day, following which, this Court granted leave to appeal but dismissed the appeal. These are my reasons for joining in that order.
The sentencing hearing proceeded by way of statement of agreed facts, including the following:

“2. On 24 December 2014, the Australian Crime Commission began intercepting the offender’s mobile telephone as part of a joint investigation with Australian Federal Police into her suspected involvement in money laundering.
3. Investigators identified that from 24 January 2015, the offender was in contact by telephone with:
• a Vietnamese-speaking male called Trung (TRUNG);
• a Vietnamese-speaking female called My (MY);…

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 44
Case: [2019] NSWCCA 44
Decision Date: 13 March 2019

CaseChat Overview and Summary

Nguyen appealed against his sentence, which was imposed after his conviction for dealing with money reasonably suspected of being proceeds of crime. The case was heard in the High Court of Australia. The central issues before the court were whether the sentencing judge failed to consider the utilitarian benefits of Nguyen's guilty plea, whether there was an error in the assessment of the objective criminality, and whether the sentence was manifestly excessive.

The court began by examining the sentencing judge's consideration of the utilitarian benefits of Nguyen's guilty plea. It was determined that the judge had indeed taken these benefits into account, thereby rejecting Nguyen's contention that the sentence was flawed in this regard. The court also reviewed the assessment of objective criminality, finding that the sentencing judge's determination was sound and free from error. Finally, the court assessed whether the sentence was manifestly excessive. After a thorough analysis, the court concluded that the sentence was within the range of appropriate punishments for the offence committed.

In light of these findings, the High Court dismissed Nguyen's appeal. The court's decision affirmed the original sentence, indicating that the sentencing judge had appropriately balanced all relevant factors in determining the appropriate punishment for Nguyen's criminal conduct.

Orders