R v Nguyen - [2024] NSWDC 123

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2024] NSWDC 123
Hearing dates: 1 February 2024
Date of orders: 1 February 2024
Decision date: 01 February 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 6 years and 9 months with a non-parole period of 4 years 4 months

Catchwords:
CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity
SENTENCING — Aggravating factors — Breach of conditional liberty — Repeat offender
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Commencement date — Dispute as to starting date
SENTENCING — Relevant factors on sentence —Avoiding a crushing sentence — Objective seriousness — Deterrence — General deterrence — Specific deterrence — Form 1 offence
SENTENCING — Sentencing procedure — Expert reports — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Deprived background — Childhood sexual abuse — Drug addiction — Mental health — Special circumstances

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act1985 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Decision restricted [2022] NSWCCA 246
Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Jinnette v R [2012] NSWCCA 217
KM v R [2023] NSWCCA 10
Owen v R [2022] NSWCCA 214
Paterson v R [2021] NSWCCA 273
R v Nguyen (District Court (NSW), 7 August 2015, unrep)
R v Nguyen (District Court (NSW),15 March 2013 unrep)
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Category: Sentence
Parties: Anh The Nguyen (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
A Booker (for the accused)
C Todd (for the Crown)
Solicitors:
Legal Aid (NSW) (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/273934

JUDGMENT – ex tempore revised

This morning Anh The Nguyen adhered to a plea of guilty to an offence of Manufacturing a Large Commercial Quantity of the Prohibited Drug methylamphetamine. That offence, charged pursuant to s 24(2) Drug Misuse and Trafficking Act1985 (NSW), carries a maximum penalty of life imprisonment, and there is and a standard non‑parole period of 15 years. He had indicated that plea in the Local Court.

Maximum penalty and standard non-parole period

While every offence and every offender is individual and requires individualised treatment by a sentencing judge, that maximum and that standard non-parole are important guides to the exercise of my sentencing discretion. And content should be given to the standard non-parole period. They stand as stark statements by Parliament about how serious Parliament, on behalf of the community, views the manufacture of prohibited drugs, which generally, and as here, were intended for distribution. The potential harm caused to individuals and the community by manufacture of such drugs…

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 R v Nguyen

Details

AGLC: R v Nguyen [2024] NSWDC 123
Case: [2024] NSWDC 123
Decision Date: 01 February 2024

CaseChat Overview and Summary

The case of R v Nguyen arose in the Supreme Court of Victoria, where the appellant, Nguyen, was convicted of manufacturing a large commercial quantity of a prohibited drug. The dispute centred around the appropriate sentence to be imposed on Nguyen, with arguments about both aggravating and mitigating factors. The Crown sought a lengthy sentence, citing Nguyen's history as a repeat offender and his breach of conditional liberty, while the defence highlighted mitigating factors such as Nguyen's guilty plea and expressions of remorse. Additionally, the defence presented expert reports and argued for special considerations due to Nguyen's deprived background, childhood sexual abuse, drug addiction, mental health issues, and other personal circumstances.

The court was required to weigh the aggravating factors, including the commercial scale of the drug manufacturing, Nguyen's criminal history, and breach of conditional liberty, against the mitigating factors, such as his guilty plea, demonstrated remorse, and personal hardships. The court also had to determine the starting date for the imprisonment sentence and the relevance of deterrence, both general and specific, given the nature of the offence. Furthermore, the court needed to consider the objective seriousness of the offence and whether to impose a crushing sentence.

In its reasoning, the court acknowledged the severity of the offence, the need for both general and specific deterrence, and the importance of avoiding an overly harsh sentence. However, it also considered the mitigating factors presented, including the expert reports on Nguyen's background and personal circumstances. The court concluded that while the offence was serious, the mitigating factors warranted a sentence that balanced punishment, deterrence, and rehabilitation. The court determined an imprisonment sentence of 6 years and 9 months, with a non-parole period of 4 years and 4 months. The sentence was to commence from a specific date, resolving the dispute regarding the starting date for the imprisonment term.

Orders

Orders of the court

Imprisonment sentence of 6 years and 9 months with a non-parole period of 4 years 4 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Nguyen [2024] NSWDC 123
Hearing dates:	1 February 2024
Date of orders:	1 February 2024
Decision date:	01 February 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 6 years and 9 months with a non-parole period of 4 years 4 months
Catchwords:	CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity SENTENCING — Aggravating factors — Breach of conditional liberty — Repeat offender SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Commencement date — Dispute as to starting date SENTENCING — Relevant factors on sentence —Avoiding a crushing sentence — Objective seriousness — Deterrence — General deterrence — Specific deterrence — Form 1 offence SENTENCING — Sentencing procedure — Expert reports — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Deprived background — Childhood sexual abuse — Drug addiction — Mental health — Special circumstances
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act1985 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Decision restricted [2022] NSWCCA 246 Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Jinnette v R [2012] NSWCCA 217 KM v R [2023] NSWCCA 10 Owen v R [2022] NSWCCA 214 Paterson v R [2021] NSWCCA 273 R v Nguyen (District Court (NSW), 7 August 2015, unrep) R v Nguyen (District Court (NSW),15 March 2013 unrep) The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Category:	Sentence
Parties:	Anh The Nguyen (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: A Booker (for the accused) C Todd (for the Crown) Solicitors: Legal Aid (NSW) (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/273934