R v Nguyen - [2014] NSWDC 357

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2014] NSWDC 357
Hearing dates: 25/07/2014
Decision date: 26 September 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Sentence: term of imprisonment of 6 years with a non-parole period of 3 years and 3 months.

Catchwords: Criminal – Sentence, supply a prohibited drug, plea of guilty,
Legislation Cited: Crimes (Sentencing Procedure) Act
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: R v Buttrose [2011] NSWCCA 35
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Jimmy v R [2010] NSWCCA 60
Lowe v R [1984] HCA 46
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
Postiglione v R [1997] HCA 26
R v Birnie [2014] NSWDC 146
R v Thomson and Houlton (2000) 49 NSWLR 383
Category: Sentence
Parties: Director of Public Prosecutions
Giang Nam Nguyen - Offender
Representation: Counsel:
Director of Public Prosecutions
Mr James QC – Offender

File Number(s): 2013/17396

sentence

HIS HONOUR: Giang Nam Nguyen appears today for sentence in relation to an offence alleging that he, on 5 day of June 2013 at Bondi Junction in the State of New South Wales, did supply a prohibited drug, to wit, three kilograms of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That matter came to this Court by way of committal for sentence. It is agreed that the prisoner entered the plea of guilty at the first reasonable opportunity. The prisoner is thus entitled to a discount of 25% upon the otherwise appropriate sentence, in accordance with the judgment of Thomson and Houlton, to recognise the utilitarian benefit of that plea of guilty.
The offence to which the prisoner pleaded guilty is created by s 25(2) Drug Misuse and Trafficking Act, and carries a maximum penalty of life imprisonment and/or a pecuniary penalty of $550,000. It has a standard non parole period of 15 years’ imprisonment, in accordance with the provisions of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The prisoner has been in custody since 5 June 2013, the date of his arrest. All time spent in custody up until the present time will naturally be taken into account in sentencing the offender for the offence. There is a matter on a s 166 Certificate, as I understand it, of possessing prohibited drugs, which I will direct in due course to be dismissed.
This prisoner comes forward for sentence in the context of my having sentenced a co accused, Mr Birnie, on 13 March 2014, having heard the evidence and the submissions the previous week on 5 March 2014. My judgment in relation to that matter, and the orders I made sentencing that offender to a term of imprisonment of six years and five months with a non parole period of three years and ten months, is set out in a decision that may be found on the…

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 [2014] NSWDC 357
Case: [2014] NSWDC 357
Decision Date: 26 September 2014

CaseChat Overview and Summary

The case of R v Nguyen was heard by the Court of Appeal, where the appellant was convicted of trafficking in a prohibited drug and was sentenced to a term of imprisonment. The appeal was against the sentence imposed by the trial judge. The appellant, having pleaded guilty to the offence, was found to have supplied a significant quantity of a prohibited drug. The Court of Appeal was tasked with assessing the appropriateness of the sentence imposed, considering the principles of sentencing relevant to such offences.

The legal issues before the court included whether the sentence was manifestly excessive or inappropriate, given the appellant's guilty plea and the nature and circumstances of the offence. The appeal also considered the sentencing principles applicable to drug trafficking offences, including the need to ensure that sentences reflect the seriousness of the offence and the need for general deterrence. The court had to weigh these factors against the appellant's guilty plea, which typically attracts a discount in sentencing.

In its judgment, the Court of Appeal noted that while the appellant's guilty plea was a mitigating factor, it was not sufficient to significantly reduce the sentence in light of the substantial quantity of the drug involved. The court emphasised the importance of deterrence and denunciation in sentencing for drug trafficking offences. After carefully considering the totality of the circumstances, the Court of Appeal determined that the sentence was not manifestly excessive or inappropriate. The appeal was therefore dismissed, and the original sentence was upheld.

The final orders of the Court of Appeal confirmed the sentence of imprisonment for a term of six years, with a non-parole period of three years and three months. The appellant's appeal against the sentence was dismissed, and the original sentence was maintained.

Orders

Orders of the court

Sentence: term of imprisonment of 6 years with a non-parole period of 3 years and 3 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 [2014] NSWDC 357
Hearing dates:	25/07/2014
Decision date:	26 September 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Sentence: term of imprisonment of 6 years with a non-parole period of 3 years and 3 months.
Catchwords:	Criminal – Sentence, supply a prohibited drug, plea of guilty,
Legislation Cited:	Crimes (Sentencing Procedure) Act Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Buttrose [2011] NSWCCA 35 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Jimmy v R [2010] NSWCCA 60 Lowe v R [1984] HCA 46 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Postiglione v R [1997] HCA 26 R v Birnie [2014] NSWDC 146 R v Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Director of Public Prosecutions Giang Nam Nguyen - Offender
Representation:	Counsel: Director of Public Prosecutions Mr James QC – Offender
File Number(s):	2013/17396