R v Nguyen - [2021] NSWDC 791

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2021] NSWDC 791
Hearing dates: 24 November 2021
Date of orders: 24 November 2021
Decision date: 24 November 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A sentence of imprisonment of two years. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) of the offender is to be released forthwith on the condition that the offender enter into a recognisance: at [27].

Catchwords:
SENTENCING — Factors taken into account — Plea of guilty — Remorse — Rehabilitation — No record of previous convictions — No Injury, harm, loss or damage apparent
SENTENCING — Penalties — Recognisance
SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — General principles — Maximum penalty — Objective seriousness

Legislation Cited:
Crimes Act 1914 (Cth)

Cases Cited:
R v Zahab [2019] NSWSC 629
Duong v DPP [2021] VSCA 136
DPP (Cth) v Cacaj, Gjolaj and Camaj [2019] VCC 2200
R v Zahab [2019] NSWSC 629
DPP V Le & Anor [2021] VCC 582
DPP (Cth) v Waller [2021] VCC 79

Category: Sentence
Parties:
Regina (Commonwealth Director of Public Prosecutions)
Thi Phuong Ngoc Nguyen (Offender)
Representation:
Ms Eptein (Crown Prosecutor, Commonweath Director of Public Proscutions)
Mr Milanovic (Counsel for the offender)

File Number(s): 20219/366246

Judgment

Thi Phoung Ngoc “Natasha” Nguyen pleaded guilty to the one offence contrary to s 3LA(6) of the Crimes Act 1914 (Cth) alleging that she contravened a requirement of an order which she was capable of complying with and the offence which the relevant warrant related was a serious offence. The offence carries a maximum penalty of ten years imprisonment.
The maximum penalty is of course an important yardstick in the sentencing process.
She has spent no time in custody.
She was living at Bass Hill with, amongst others, her sister and her boyfriend.
In 2019, Australian Federal Police engaged in an undercover operation in relation to the importation of drugs and700 kilograms of MDMA was seized in the Netherlands as a result of the undercover operation. An inert substance was substituted for a 700 kilogram consignment.
After further investigations into the importation, Police executed a warrant at the offender’s address on 11 November 2019 in relation to her sister’s involvement in the importation. Police found the offender in her bedroom. They seized cash, but the offender was not alleged to have committed an offence in relation to the cash. They found four mobile phones on the bedside tables in her room.
Later that day they served on her an order under s 3LA of the Crimes Act 1914 (Cth). She attended the AFP headquarters the next day with her lawyers. She admitted owning the Blackberry phone but she did not know the password. A little later, the lawyer informed the detective that his client had told him that the phones did not normally need passwords to open them and that between the time they were removed and taken by police something had happened to…

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 [2021] NSWDC 791
Case: [2021] NSWDC 791
Decision Date: 24 November 2021

CaseChat Overview and Summary

The defendant, Nguyen, was before the court for sentencing following a plea of guilty to an unspecified offence under the Crimes Act 1914 (Cth). The court was tasked with determining an appropriate sentence, taking into account various sentencing principles and factors. These included the nature of the offence, the objective seriousness, the need for deterrence, and the personal circumstances of the defendant, such as their previous criminal record, remorse, and potential for rehabilitation.

The court examined the mitigating factors presented, noting the defendant's plea of guilty, the absence of any previous convictions, and the lack of apparent injury, harm, loss, or damage resulting from the offence. These factors were weighed against the need for general deterrence and the maximum penalty prescribed by law. The court also considered the overall circumstances of the offence, aiming to balance the principles of punishment and rehabilitation.

In reaching its decision, the court concluded that a sentence of imprisonment was necessary, but also recognised the potential for rehabilitation and the lack of any significant harm caused by the offence. Consequently, the court imposed a sentence of two years imprisonment. However, recognising the mitigating factors and the defendant's plea of guilty, the court ordered that the defendant be released forthwith on the condition that they enter into a recognisance, pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth). This decision reflects a balanced approach, acknowledging both the need for punishment and the opportunity for rehabilitation.

Orders

Orders of the court

A sentence of imprisonment of two years. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) of the offender is to be released forthwith on the condition that the offender enter into a recognisance: at [27].

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 [2021] NSWDC 791
Hearing dates:	24 November 2021
Date of orders:	24 November 2021
Decision date:	24 November 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A sentence of imprisonment of two years. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) of the offender is to be released forthwith on the condition that the offender enter into a recognisance: at [27].
Catchwords:	SENTENCING — Factors taken into account — Plea of guilty — Remorse — Rehabilitation — No record of previous convictions — No Injury, harm, loss or damage apparent SENTENCING — Penalties — Recognisance SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — General principles — Maximum penalty — Objective seriousness
Legislation Cited:	Crimes Act 1914 (Cth)
Cases Cited:	R v Zahab [2019] NSWSC 629 Duong v DPP [2021] VSCA 136 DPP (Cth) v Cacaj, Gjolaj and Camaj [2019] VCC 2200 R v Zahab [2019] NSWSC 629 DPP V Le & Anor [2021] VCC 582 DPP (Cth) v Waller [2021] VCC 79
Category:	Sentence
Parties:	Regina (Commonwealth Director of Public Prosecutions) Thi Phuong Ngoc Nguyen (Offender)
Representation:	Ms Eptein (Crown Prosecutor, Commonweath Director of Public Proscutions) Mr Milanovic (Counsel for the offender)
File Number(s):	20219/366246