Nguyen v The Queen

Case [2010] NSWCCA 132

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Nguyen v R [2010] NSWCCA 132

FILE NUMBER(S):
2008/6763

HEARING DATE(S):
19 May 2010

JUDGMENT DATE:
25 June 2010

PARTIES:
Duy Nguyen (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Barr AJ   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/6763

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
8 May 2009

COUNSEL:
I Lloyd QC (Applicant)
N Adams (Respondent)

SOLICITORS:
Tsambas & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – particular offences – drug offences – trafficking marketable quantity of controlled drug (heroin)
CRIMINAL LAW – appeal against severity of sentence – sentence manifestly excessive – applicant high level functionary – error in approach to reduction for guilty plea
CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics and comparisons - range of sentences in R v Wong and Leung not applicable – consideration of decisions under Customs Act 1901 – sentence outside range ordinarily imposed
CRIMINAL LAW – sentence – relevant factors – nature and circumstance of offence – consideration of quantity and nature of offender’s involvement

LEGISLATION CITED:
Criminal Code Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Carroll v The Queen [2009] HCA 13
House v The King [1936] HCA 40; 55 CLR 499
R v Carroll; Carroll v R [2010] NSWCCA 55
R v Pham [2005] NSWCCA 314
R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
The Queen v Xin Liang [2009] VSCA 18
Trandy v The Queen; Pham v The Queen; Nguyen v The Queen [2009] VSCA 321
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

TEXTS CITED:

DECISION:
(i) Leave to appeal granted; (ii) Appeal allowed, sentences quashed; (iii) In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of six years commencing on 15 January 2007 and expiring on 14 January 2013, with a balance of term of 3 years, expiring on 14 January 2016.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/6763

McCLELLAN CJ at CL
SIMPSON J
BARR AJ

25 June 2010

Duy NGUYEN v R

Judgment

  1. McCLELLAN CJ at CL:  I agree with Simpson J.

  2. SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him by Judge Freeman in the District Court on 8 May 2009, following his plea of guilty to a single count, brought under s 302.3(1) of the Criminal Code Act 1995 (“the Code”), of trafficking a marketable quantity of a controlled drug (heroin). An offence against the section carries a maximum custodial penalty of imprisonment for 25 years.

  3. The applicant was sentenced to imprisonment for 13 years with a non-parole period of 8½ years.

    The offence

  4. The offence was committed over a period of about four months, from early…

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Details
AGLC
Nguyen v The Queen [2010] NSWCCA 132
Case
[2010] NSWCCA 132
Decision Date

CaseChat Overview and Summary

The case of Nguyen v The Queen concerned an appeal against the severity of a sentence for trafficking a marketable quantity of heroin. The applicant, a member of the Chicken Man Syndicate, had organised the distribution of heroin between Sydney and Melbourne over a period of four months. He was involved in numerous activities related to the drug trade, including arranging couriers, discussing transactions, and overseeing the operations of the syndicate. The applicant was initially charged with two counts of trafficking, but later pleaded guilty to a consolidated charge of trafficking in a total of 698.3 grams of heroin.

The legal issues before the court included whether the sentence was manifestly excessive, whether there was an error in the approach to the reduction for the guilty plea, and whether the sentencing statistics and comparisons were applicable. The court also needed to consider the nature and circumstances of the offence, the quantity and nature of the offender's involvement, and the range of sentences ordinarily imposed for such offences.

The court found that the sentence was not manifestly excessive, and that there was no error in the approach to the reduction for the guilty plea. The court noted that the range of sentences in R v Wong and Leung did not apply, and that the sentencing statistics and comparisons were not relevant to this case. The court also considered the decisions under the Customs Act 1901, and found that the sentence was outside the range ordinarily imposed for such offences. The court took into account the nature and circumstances of the offence, the quantity and nature of the offender's involvement, and the personal circumstances of the applicant, including his background as a refugee and his limited education.

The final orders of the court were that the appeal against sentence be dismissed, but that the sentence be reduced by one month due to the error in the calculation of the time spent on remand. The applicant was sentenced to imprisonment for a term of seven years and six months, with a non-parole period of five years.

Orders

Orders of the court

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Background

Background to the litigation

The offence was committed over a period of about four months, from early September 2006 to mid-January 2007. The applicant was a member of a syndicate (“the Chicken Man Syndicate”) that arranged distribution of heroin between Sydney and Melbourne. He was actively involved in the organisation of the distribution, as evidenced by numerous telephone calls in which he participated, and in which he discussed drug transactions, price, purity and quantity of drug to be supplied, informed purchasers of the availability of drugs, arranged for couriers to transport drugs from Sydney to Melbourne, and generally oversaw arrangements and reported on the activities of various participants. He met with other members to discuss the arrangements for supplies.Background Initially, the applicant was charged with two counts of trafficking. The first count concerned a supply by him on 1-2 October 2006 of two blocks of heroin with a pure quantity of 139.9 grams. (This is less than the marketable quantity.) To this count he entered a plea of guilty in the Local Court. The second incident related to a further supply, on 13 January 2007, of two blocks of heroin with a pure quantity of 558.4 grams. In respect of this count, he was committed for trial. The trial commenced on 2 February 2009. A voir dire into the admissibility of certain surveillance evidence was conducted. It seems that, before a ruling was made on that question but (according both to the sentencing judge and to the Crown and conceded by senior counsel for the applicant), when it was apparent that the question would be decided against him and the evidence admitted, he indicated that he was prepared to plead guilty to that count also. As a result, the Crown consolidated the two offences into a single count, and presented an indictment alleging that the applicant trafficked in a marketable quantity of heroin, the quantity being the total involved in the two incidents (698.3 grams).Personal circumstances Evidence of the applicant’s personal circumstances emerged from two pre-sentence reports prepared by the Probation and Parole Service, and a psychological report prepared by Mr W John Taylor. From these the following emerges. The applicant was born in Vietnam, in 1978. He was 28 at the time of the offence, 31 at sentencing. He left Vietnam with his father, as a refugee, when aged about six. His mother and sister remained in Vietnam at that time. The applicant and his father lived in a refugee camp in Thailand for three years, before coming to Australia, sponsored by his grandfather who had already settled here. His father had commenced a de-facto relationship in Thailand, and the applicant went to live with an aunt. When the applicant was about 14 or 15, his mother and sister migrated to Australia, and his parents lived together for a short time, before the marriage ended, because of his father’s violence. The applicant attended school in Australia, but left at the age of 16, with a very limited ability to read and write English. He is illiterate in Vietnamese.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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