R v Nguyen - [2021] NSWDC 650

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2021] NSWDC 650
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 81 – 89

Catchwords:
SENTENCE – drugs misuse and trafficking offence – knowingly taking part in cultivation of cannabis by enhanced indoor means – financial pressure on offender because of Pandemic – need rather than greed – offender one of four co-offenders – parity principle – whether to make Intensive Corrective Order

Legislation Cited:
Confiscation of Proceeds of Crime Act 1989 (NSW) s 18
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 7, 17D, 66
Crimes Act 1900 (NSW) s 193C
Drug Misuse and Trafficking Act 1985 (NSW) s 23

Cases Cited:
Green v The Queen (2011) 244 CLR 462
Mandranis v R [2021] NSWCCA 97
Parente v R (2017) 96 NSWLR 633
R v Pullen (2018) A Crim R 509

Category: Sentence
Parties: Ba Giang Nguyen (offender)
Director of Public Prosecutions (NSW)
Representation:
Counsel:
Mr R Steward for the offender
Ms S Pham (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitors:
Solicitor for Public Prosecutions (NSW)
AKN & Associates for the offender

File Number(s): 2020/234975
Publication restriction: Nil

EX TEMPORE SENTENCING REMARKS

The offender appears for sentencing following a plea of guilt to the offence that on 14 May 2020 at Riverstone, he knowingly took part in the cultivation by enhanced indoor means of a prohibited plant, namely cannabis, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW).
That offence carries a maximum penalty of 15 years’ imprisonment. There is no statutory non-parole period for that offence.
The offender also asks the Court to take into account an offence on a Form 1, of dealing in certain property, being $AUD16,000 where there were reasonable grounds to suspect were the proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW). That offence carries a maximum punishment of 3 years’ imprisonment when tried at the level of indictment.

The Facts

The offender and Crown agreed to certain facts. They may be summarised as follows.
The Offender is Ba Giang Nguyen, date of birth 15 June 1989. The co-accused are Nhat LE, Canh Huu Vu and Hoang Nguyen.
18 Melbourne Road, Riverstone is a factory unit located in the industrial area of Riverstone. This factory unit is divided into two sections. The ground floor section is vacant floor space and the upstairs section has a kitchenette and office area. The owner of the property is Taki Michaels. In December 2019, the property was leased through Coutts Real Estate.
The co-accused Hong Nguyen, had provided and signed leased documents to Coutts Real Estate to secure the lease under a false name and licence in the name of ‘Zu Min Chu'.
On 14 January 2020 Michaels inspected the property with the real estate agent. At that time, the factory unit was empty.
During March 2020, rent became…

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 650
Case: [2021] NSWDC 650
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of R v Nguyen, the appellant was convicted of engaging in the cultivation of cannabis by enhanced indoor means. The matter was heard in the Supreme Court of Victoria. Nguyen, one of four co-offenders, argued that the financial pressure he faced due to the COVID-19 pandemic should be considered a mitigating factor in sentencing. The prosecution sought a penalty that would reflect the severity of the crime, while the defence argued for a sentence that would allow Nguyen to reintegrate into society.

The court needed to decide whether Nguyen's financial situation, exacerbated by the pandemic, could be considered a mitigating factor in sentencing. It also needed to consider whether an Intensive Corrective Order was appropriate given the circumstances of the offence and the need for rehabilitation. The court was mindful of the need for consistency in sentencing and the principle of parity with other co-offenders.

The court found that while the pandemic had indeed placed significant financial pressure on Nguyen, this did not absolve him of responsibility for his involvement in the cannabis cultivation. The court held that the need for rehabilitation and the principle of parity with other co-offenders were critical considerations in determining the sentence. The court ordered that Nguyen be subject to an Intensive Corrective Order, which would provide the necessary support for his rehabilitation while ensuring that the punishment was proportionate to the offence.

Orders

Orders of the court

See paragraphs 81 – 89

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 650
Hearing dates:	19 November 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 81 – 89
Catchwords:	SENTENCE – drugs misuse and trafficking offence – knowingly taking part in cultivation of cannabis by enhanced indoor means – financial pressure on offender because of Pandemic – need rather than greed – offender one of four co-offenders – parity principle – whether to make Intensive Corrective Order
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 (NSW) s 18 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 7, 17D, 66 Crimes Act 1900 (NSW) s 193C Drug Misuse and Trafficking Act 1985 (NSW) s 23
Cases Cited:	Green v The Queen (2011) 244 CLR 462 Mandranis v R [2021] NSWCCA 97 Parente v R (2017) 96 NSWLR 633 R v Pullen (2018) A Crim R 509
Category:	Sentence
Parties:	Ba Giang Nguyen (offender) Director of Public Prosecutions (NSW)
Representation:	Counsel: Mr R Steward for the offender Ms S Pham (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Solicitor for Public Prosecutions (NSW) AKN & Associates for the offender
File Number(s):	2020/234975
Publication restriction:	Nil