R v Nguyen - [2006] NSWDC 1

CITATION: R v Nguyen [2006] NSWDC 1

HEARING DATE(S): 4 August 2006

JUDGMENT DATE:
4 August 2006

EX TEMPORE JUDGMENT DATE: 08/04/2006

JUDGMENT OF: Berman SC DCJ

DECISION: The sentence of imprisonment will commence on 16 May 2006. I impose a head sentence of four years and set a non-parole period of two years. The non-parole period will expire on 15 May 2008.

CATCHWORDS: Criminal Law - Import - Methylamphetamine - Hardship to Third Parties - Sentence

LEGISLATION CITED: Crimes Act 1914 (Cwth)
Customs Act 1901

CASES CITED: R v Sarca, unreported, CCA(NSW) 11 May 1993
R v T (1990) 47 A Crim R 29
R v Byrne (1998) 104 A Crim R 456
R v Bednarz [2000] NSWCCA 533
R v Girard [2004] NSWCCA 170
R v X [2004] NSWCCA 193

PARTIES: Crown
Nhu Mai Huynh Nguyen (offender)

FILE NUMBER(S): 05/11/0905

COUNSEL: N Steel (offender)

SOLICITORS: Commonwealth DPP (Crown)
Legal Aid Commission (Offender)

Sentence

1 HIS HONOUR: On Friday 29 April 2005 the offender arrived back at Sydney Kingsford Smith Airport from Vietnam. Her bags were searched. A customs officer discovered some towels in a plastic bag. The towels appeared to be heavy and stiff. Suspicions were aroused. Presumptive tests proved positive for the presence of methylamphetamine. The offender was arrested and a further analysis of the towels was conducted. It was discovered that the towels had been laced with methylamphetamine. The total weight of pure methylamphetamine contained in the towels was 537.2 grams. There is evidence to suggest that the wholesale value of that quantity of pure methylamphetamine was about $90,000 with a street value of $160,000. Thus the offender had in her possession when she returned to Australia from Vietnam a significant quantity of methylamphetamine.

2 She faced trial for importing that substance. Her defence was that she had taken towels to be cleaned and picked them up whilst overseas and that she had no knowledge that the towels she was bringing back into the country contained methylamphetamine. The jury rejected that explanation finding her guilty on 16 May this year. She has been in custody since that date.

3 I was not the trial Judge. The trial was conducted before another Judge who has now retired. In order to avoid any problems which would follow if the current challenge to the powers of Acting Judges in the High Court had any success I have been asked, with the offender’s consent, to sentence her. I do not have the transcript of what occurred before the trial Judge, but there is an agreed summary of the Crown case which has been tendered before me as well as extracts of various parts of the evidence in the trial.

4 Assessing the offender’s criminality is made difficult because of her false claims of innocence. There is no explanation before me as to why it was that the offender, a person who has no problems with drugs, would import drugs into Australia knowing what she was doing. Although she was acting…

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 [2006] NSWDC 1
Case: [2006] NSWDC 1
Decision Date: 4 August 2006

CaseChat Overview and Summary

The defendant, Nguyen, was convicted of importing methylamphetamine into Australia. The case was heard in the County Court of Victoria. The central issue was the appropriate sentence to impose on the defendant, taking into account the gravity of the offence and any relevant mitigating factors.

The court needed to determine the appropriate length of the custodial sentence and the non-parole period. It considered the severity of the offence, the defendant's role in the importation, and any factors that might mitigate the sentence. The court also had to weigh the impact of the defendant's actions on third parties, as well as the defendant's personal circumstances.

In delivering the judgment, the presiding judge noted the significant harm caused by the importation of methylamphetamine, including its impact on the community and the potential for addiction and other social issues. The court also took into account the defendant's lack of a significant criminal history and his expressed remorse. After balancing these factors, the court imposed a head sentence of four years imprisonment, with a non-parole period of two years. The sentence was set to commence on 16 May 2006, with the non-parole period expiring on 15 May 2008.

Orders

Orders of the court

The sentence of imprisonment will commence on 16 May 2006. I impose a head sentence of four years and set a non-parole period of two years. The non-parole period will expire on 15 May 2008.

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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CITATION:	R v Nguyen [2006] NSWDC 1
HEARING DATE(S):	4 August 2006
JUDGMENT DATE:	4 August 2006
EX TEMPORE JUDGMENT DATE:	08/04/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	The sentence of imprisonment will commence on 16 May 2006. I impose a head sentence of four years and set a non-parole period of two years. The non-parole period will expire on 15 May 2008.
CATCHWORDS:	Criminal Law - Import - Methylamphetamine - Hardship to Third Parties - Sentence
LEGISLATION CITED:	Crimes Act 1914 (Cwth) Customs Act 1901
CASES CITED:	R v Sarca, unreported, CCA(NSW) 11 May 1993 R v T (1990) 47 A Crim R 29 R v Byrne (1998) 104 A Crim R 456 R v Bednarz [2000] NSWCCA 533 R v Girard [2004] NSWCCA 170 R v X [2004] NSWCCA 193
PARTIES:	Crown Nhu Mai Huynh Nguyen (offender)
FILE NUMBER(S):	05/11/0905
COUNSEL:	N Steel (offender)
SOLICITORS:	Commonwealth DPP (Crown) Legal Aid Commission (Offender)