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R v Nguyen

R v Nguyen

Case [2010] NSWCCA 331 21 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331

HEARING DATE(S): 14 December 2010

JUDGMENT DATE:
21 December 2010

JUDGMENT OF: Simpson J at 1; Hall J at 74; Garling J at 75

DECISION: Crown appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences – conspiracy to traffic marketable quantity of controlled drug (heroin and methamphetamine) – conspiracy to money launder - CRIMINAL LAW – Crown appeal – asserted manifest inadequacy – no error of principle or fact – whether sentence unreasonable or plainly unjust – nature of offence – conspiracy – comparable sentencing of other individuals involved in syndicate – role of offenders – no error in assessment by sentencing judge – parity principles not available to increase sentence – Crown appeal dismissed - CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics – applicable range of sentences – consideration of comparable offences – comparable sentences under Commonwealth law – comparable sentences under state law – appropriate basis for comparison

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Carroll v The Queen [2009] HCA 13
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen; Jones v The Queen [2010] HCA 45
House v The King [1936] HCA 40; 55 CLR 499
Le v R (Cth) [2010] NSWCCA 285
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Nguyen v R [2010] NSWCCA 132
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
R v Guo [2010] NSWCCA 170
R v Li; Li v R [2010] NSWCCA 125
R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80
Steer v R [2000] FCA 462; 171 ALR 463
Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458

PARTIES:
2009/10935
Regina (Cth) (Appellant)
John Viet Nguyen (Respondent)
2009/10940
Regina (Cth) (Appellant)
Anthony Si Nguyen (Respondent)

FILE NUMBER(S): CCA 2009/10935; 2009/10940

COUNSEL: L Crowley (Appellant)
P Stitz (Respondents)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
Australian Criminal Law Specialists (John Viet Nguyen)
Jack Rigg Solicitors (Anthony Si Nguyen)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/10935; 2009/10940

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 10 September 2010

2009/10935
2009/10940

SIMPSON J
HALL J
GARLING J
21 December 2010

R (Cth) v John Viet NGUYEN

R (Cth) v Anthony Si NGUYEN

Judgment

1 SIMPSON J: Between 30 March 2010 and 2 June 2010, the respondents, Anthony Si Nguyen and John Viet Nguyen, stood trial in the District Court on an indictment that charged each with:

● one count (brought under s 302.3(1) and s 11.5 of the Criminal Code Act 1995 (Cth) (“the Code”)), of conspiracy to traffic in a marketable quantity of controlled 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 [2010] NSWCCA 331
Case: [2010] NSWCCA 331
Decision Date: 21 December 2010

CaseChat Overview and Summary

The case of R v Nguyen involved an appeal by the Crown against the sentence handed down to the defendant for conspiracy to traffic in a marketable quantity of controlled drugs, specifically heroin and methamphetamine, as well as conspiracy to money launder. The matter was heard in the High Court of Australia. The Crown appealed the sentence, asserting that it was manifestly inadequate, and sought to have it increased on the basis of alleged errors in principle or fact, or on the grounds that the sentence was unreasonable or plainly unjust.

The primary legal issues before the court were whether the sentence imposed was inadequate and whether the sentencing judge erred in principle or fact. The court also needed to determine if the sentence was unreasonable or plainly unjust, taking into account the nature of the offence, the role of the offender within the syndicate, and the comparable sentencing of other individuals involved in the syndicate. Furthermore, the court had to consider whether parity principles could be used to increase the sentence and if the applicable range of sentences and consideration of comparable offences, both under Commonwealth and state law, provided an appropriate basis for comparison.

In delivering its judgment, the court found no error of principle or fact in the sentencing judge's assessment. It was held that the sentence was appropriate in light of the nature of the offence and the role of the offender within the syndicate. The court also determined that parity principles were not available to increase the sentence, and that the sentencing judge had correctly considered comparable sentences under both Commonwealth and state law. Consequently, the Crown's appeal was dismissed, and the original sentence was upheld.

Orders