Nguyen v The Queen - [2009] NSWCCA 112

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Nguyen v R [2009] NSWCCA 112

FILE NUMBER(S):
2008/14157

HEARING DATE(S):
8 April 2009

JUDGMENT DATE:
17 April 2009

PARTIES:
Dinh Chien NGUYEN - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Howie J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
08/11/0894

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
19 December 2008

COUNSEL:
S Odgers SC - Applicant
V Lydiard - Respondent/Crown

SOLICITORS:
Ly Lawyers - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Deemed supplying of prohibited drug (MDMA) by reason of quantity possessed
No error by judge in failing to consider available sentencing options
No special point of principle

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
R v Clarke, unreported, NSWCCA 15 March 1990
R v Depalo [2003] NSWCCA 80
R v Gu [2006] NSWCCA 104

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/14157
GROVE J
HOWIE J
BUDDIN J
17 April 2009

Dinh Chien NGUYEN v R

Judgment

GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by King DCJ at Sydney District Court. He had been committed for trial on a count of supplying a prohibited drug but prior to the scheduled trial date he indicated his intention to plead guilty and did so when he was arraigned on 30 November 2008. The drug concerned was methylenedioxymethylamphetamine (MDMA) commonly referred to as ecstasy. The indictable quantity of that drug is 1.25 grammes. Actual supply was not alleged but the applicant had been arrested in possession of 6.35 grammes of the drug which was made up of twenty seven tablets and he was accordingly liable upon the indicted charge. His Honour was also asked to deal with an offence of goods in custody represented by $550 in cash which was brought before the Court pursuant to certificate under s 166 of the Criminal Procedure Act.
On the indictment the applicant was sentenced to imprisonment consisting of a non-parole period of 6 months commencing on 18 December 2008 and expiring on 17 June 2009 with a balance term of 12 months. For the offence on the certificate he was found guilty and directed to enter a bond pursuant to s 9 of the sentencing legislation to be of good behaviour for 18 months.
The facts were that at about 10 pm on Saturday evening 26 April 2008, authorized by warrant, a police constable was patrolling the city streets with a dog which had been trained to detect drugs. The applicant was standing in the foyer of the Eros Theatre in Goulburn Street and the dog reacted to him. No complaint is made about the fulfilment of requisite procedures by police thereafter and the applicant told them that he had ingested ecstasy on the previous day and that he had some drugs in his…

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 [2009] NSWCCA 112
Case: [2009] NSWCCA 112
Decision Date: 17 April 2009

CaseChat Overview and Summary

The case of Nguyen v The Queen was heard by the High Court of Australia, with Nguyen being the appellant and the Crown being the respondent. The appellant was convicted of being in possession of a commercial quantity of a prohibited drug, specifically MDMA, and was subsequently sentenced to imprisonment. The central issue before the court was whether the trial judge erred in failing to consider available sentencing options, particularly the possibility of a non-custodial sentence. This case highlights the delicate balance the court must strike between sentencing proportionality and the deterrence of drug-related crimes.

The primary legal issue the court addressed was whether the trial judge failed to properly consider all available sentencing options when imposing a custodial sentence. The appellant argued that the judge should have considered the possibility of a non-custodial sentence, given the specific circumstances of the case. The Crown, on the other hand, contended that the trial judge correctly exercised their discretion by imposing a custodial sentence, which was appropriate given the quantity and nature of the prohibited drug involved. The court's task was to determine if the judge's failure to articulate consideration of non-custodial options constituted a significant error in the sentencing process.

In reaching its decision, the court emphasised the trial judge's broad discretion in sentencing matters. It held that the trial judge was not required to explicitly state consideration of every possible sentencing option, provided the overall sentence imposed was within the bounds of proportionality and appropriate deterrence. The court found no error in the judge's failure to articulate consideration of non-custodial options, as the sentence imposed was deemed to be within the correct range and adequately served the purposes of punishment and deterrence. Consequently, the appeal was dismissed, with the court affirming that no special point of principle was raised that warranted further examination. The original sentence imposed by the trial judge was upheld.

Orders