Nguyen, Van Cong v The Queen - [2008] NSWCCA 163

New South Wales
Court of Criminal Appeal

CITATION: NGUYEN, Van Cong v R [2008] NSWCCA 163

HEARING DATE(S): 10 July 2008

JUDGMENT DATE:
10 July 2008

JUDGMENT OF: McClellan CJ at CL at 19; James J at 20; Fullerton J at 2

EX TEMPORE JUDGMENT DATE: 10 July 2008

DECISION: 1. Leave to file the notice of appeal out of time be granted.
2. Leave to appeal be granted.
3. The sentence imposed by the sentencing judge be quashed.
4. In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 12 months to date from 7 July 2007 and to expire on 10 July 2008 and a balance of term of 12 months to expire on 10 July 2009.
5. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act a direction that the applicant be released to parole forthwith.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether sentence manifestly inadequate - supply of a prohibited drug - prospect of rehabilitation - special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Ma and Pham v R [2007] NSWCCA 240
R v Phillips [2003] NSWCCA 373
R v Simpson (2001) 53 NSWLR 704

PARTIES: Van Cong Nguyen (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2007/5479

COUNSEL: B Nield (App)
J Girdham (Resp)

SOLICITORS: M Rumore (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0103

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 5 October 2007

2007/5479

MCCLELLAN CJ AT CL
JAMES J
FULLERTON J
THURSDAY 10 JULY 2008

VAN CONG NGUYEN v R

Judgment

1 MCCLELLAN CJ AT CL: I will ask Fullerton J to deliver the first judgment.

2 FULLERTON J: This is an application for leave to appeal against the sentence imposed on the applicant in the District Court on 2 October 2007. On 9 July 2007, he was found guilty of the offence of the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 after trial. Since the Notice of Intention to Appeal was filed on 27 May 2008 the applicant seeks leave to file the notice out of time. Despite the absence of any evidence to explain the delay the Crown does not oppose leave being granted. In those circumstances I propose that leave be granted.

3 The offence of supply was constituted by the applicant’s possession of 17.8 grams of the drug ecstasy for supply on 2 September 2006 in accordance with the deeming provision in s 29(1) of the Act. At trial the applicant did not contest possession but sought to establish, on the probabilities, that his possession was otherwise than for supply in circumstances where he claimed to have been given the drugs to hold on behalf of another person on condition that he return the drugs to that person at some later but unspecified time.

4 The applicant…

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, Van Cong v The Queen

Details

AGLC: Nguyen, Van Cong v The Queen [2008] NSWCCA 163
Case: [2008] NSWCCA 163
Decision Date: 10 July 2008

CaseChat Overview and Summary

The appellant, Nguyen Van Cong, was convicted of supplying a prohibited drug and subsequently sentenced to imprisonment. Nguyen appealed against his sentence, contending that it was manifestly inadequate. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether the sentence imposed by the lower court was manifestly inadequate, given the nature of the offence and the circumstances of the case. The court also considered the prospects of rehabilitation and any special circumstances that might warrant a reduction in the sentence.

The High Court, in considering the appeal, examined the principles governing the adequacy of a sentence in criminal cases. The court noted the need to balance the gravity of the offence with the principles of proportionality and deterrence. The court further deliberated on the appellant's prospects for rehabilitation and any special circumstances that might influence the appropriate sentence. Ultimately, the court concluded that while the original sentence was not manifestly inadequate, there were factors that warranted a slight adjustment to better align with the principles of sentencing. The court recognised the appellant's potential for rehabilitation and other mitigating factors, leading to a reduction in the sentence.

In light of its findings, the High Court allowed the appeal and reduced the appellant's sentence. The court's decision underscored the importance of a balanced approach in sentencing, taking into account both the severity of the offence and the individual circumstances of the offender. This nuanced approach ensures that the sentence reflects the principles of justice and rehabilitation. The final orders of the court included a revised sentence for the appellant, reflecting the court's detailed consideration of all relevant factors.

Orders