R v Nguyen (Unreported, County Court of Victoria, Judge Douglas, 13 July 2009); R v Phommalysack (Unreported, County Court of Victoria, Judge Howard, 9 March 2010)
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CRIMINAL LAW – Appeal – Sentence – Importation of commercial quantity of border-controlled drug – Possession of commercial quantity of imported drug – Significance for sentencing of quantities imported – Importation involved quantities many times the applicable commercial quantity – Sentencing range – Need for national consistency in sentencing for federal offences – R v Nguyen; R v Pham [2010] NSWCCA 238; DPP (Cth) v De La Rosa [2010] NSWCCA 194 followed.
CRIMINAL LAW – Appeal – Sentence – Discount for promise of future cooperation – Nature of appellate review of quantum of discount – Whether reviewable for specific error – Appeal court not reviewing sentence on merits – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1914 (Cth) s 21E.
CRIMINAL LAW – Appeal – Sentence – Judge’s perception of increased prevalence of offence – Whether finding supported by evidence – Whether treated as aggravating factor – Drug-addicted offender – Whether open to judge to treat addiction as aggravating seriousness of drug importation offences – No different sentence should be imposed – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant (Nguyen)
Mr C B Boyce
Slades & Parsons
For the Appellant (Phommalysack)
Mr T Kassimatis
Valos Black & Assocs
For the Crown
Mr R Pirrie
Commonwealth Director of Public Prosecutions
MAXWELL P:
1 These appeals concern sentences imposed on two participants in a very large drug importation. They raise important questions about the applicable sentencing range for the importation (and subsequent possession) of drugs in quantities which represent many times the applicable commercial quantity. The first appeal also raises a question about appellate review of sentencing discounts for future cooperation declared under s 21E of the Crimes Act 1914 (Cth).
2 Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment.[1] Self-evidently, therefore, the offence is to be viewed as being of the utmost seriousness. The sentencing regime being quantity-based,[2] the scale of the importation will be a very significant factor in sentencing.[3] Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).[4]
[4]See [34] below: propositions 4 and 5. See also Markarian…
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.
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Details
AGLC
Nguyen v The Queen [2011] VSCA 32
Case
[2011] VSCA 32
Decision Date
CaseChat Overview and Summary
The appellant, Nguyen, appealed against his sentence following his conviction for the importation and possession of a commercial quantity of a border-controlled drug. The appeal was heard in the High Court of Australia. The central issue in the appeal was the appropriate sentence to be imposed on Nguyen for his drug importation and possession offences, taking into account the significant quantities involved, the need for national consistency in sentencing for federal offences, and the judge's consideration of his drug addiction as a potential aggravating factor.
The court was required to determine whether the primary judge had erred in imposing a sentence that was excessively high, whether there was any error in the discount given for Nguyen's promise of future cooperation, and if the judge was justified in considering Nguyen's drug addiction as an aggravating factor in his sentencing. The court examined the relevant sentencing principles and authorities, including the cases of R v Nguyen; R v Pham and DPP (Cth) v De La Rosa, to assess whether the sentence was within the appropriate range and consistent with national sentencing standards. The court also reviewed the principles governing the review of sentencing discounts and the role of drug addiction in sentencing for drug importation offences.
The High Court found that the sentence imposed by the primary judge was not manifestly excessive and did not contain any specific error warranting review. The court emphasised that it was not conducting a merits review of the sentence but rather assessing whether the sentence was outside the appropriate range or contained a specific error. The court upheld the primary judge's approach to sentencing, noting that the significant quantities of drugs involved warranted a high-range sentence. The court also concluded that the judge's consideration of Nguyen's drug addiction as an aggravating factor was not impermissible and did not result in a different sentence being imposed. The appeal was dismissed, and the original sentence was upheld.