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R v Nguyen

R v Nguyen

Case [2006] NSWCCA 369 29 November 2006

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Reported Decision:
166 A Crim R 124

New South Wales

Court of Criminal Appeal

CITATION: R v NGUYEN [2006] NSWCCA 369

HEARING DATE(S): 20/11/06

JUDGMENT DATE:
29 November 2006

JUDGMENT OF: James J at 1; Hidden J at 37; Hislop J at 38

DECISION: Appeal allowed - Sentence quashed - In lieu thereof, impose a head sentence of six years commencing on 16 May 2006, with a non-parole period of three years.

CATCHWORDS: Criminal Law - Appeal against sentence - importing prohibited imports- whether hardship to third persons relevant to the sentencing of an offender - “exceptional” hardship

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Customs Act 1901 (Cth)

CASES CITED: Anna Le v Regina [2006] NSWCCA 136
R v Bednarz [2000] NSWCCA 533
R v Byrne (1998) 104 A Crim R 456
R v Girard [2004] NSWCCA 170
R v Sarca (unreported Court of Criminal Appeal 11 May 1993)
R v Togias (2001) 127 A Crim R 23
R v X [2004] NSWCCA 93

PARTIES: Regina v Nhu Mai Huynh NGUYEN

FILE NUMBER(S): CCA 2006/2065

COUNSEL: Ms W Abraham QC - Appellant
P Winch - Respondent

SOLICITORS: Commonwealth Director of Public Prosecutions - Appellant
Legal Aid Commission of New Souoth Wales - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0905

LOWER COURT JUDICIAL OFFICER: Berman QC DCJ

LOWER COURT DATE OF DECISION: 4/08/ 2006

2006/2065

JAMES J
HIDDEN J
HISLOP J
29 November 2006

REGINA v Nhu Mai Huynh NGUYEN

Judgment

1 JAMES J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Nhu Mai Huynh Nguyen by his Honour Judge Berman SC in the District Court on 4 August 2006. For an offence of importing prohibited imports being not less than a trafficable quantity of methylamphetamine, of which the respondent had been found guilty after a trial, his Honour imposed a sentence of imprisonment for four years with a non-parole period of two years commencing on 16 May 2006, the date on which at the trial the jury returned its verdict of guilty. The offence had been committed on 29 April 2005. The respondent had been arrested on that day but had been allowed bail and had remained at liberty on bail until 16 May 2006.

2 Importing prohibited imports is an offence under s 233B of the Customs Act 1901 (Cth) for which the maximum penalty is imprisonment for twenty-five years and a fine of $550,000.

3 At the beginning of his Honour’s remarks on sentence his Honour concisely stated the facts of the offence in a way which has not been the subject of any challenge on the hearing of this appeal. His Honour said:-

“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…

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] NSWCCA 369
Case: [2006] NSWCCA 369
Decision Date: 29 November 2006

CaseChat Overview and Summary

In the case of R v Nguyen, the appellant, a Vietnamese national, was convicted for importing prohibited goods into Australia. The dispute centred around the severity of the sentence imposed by the trial judge, which the appellant deemed excessive. The matter was heard in the High Court of Australia. The appellant argued that the trial judge had failed to consider the hardship that the sentence would cause to third parties, namely his family, which should have been a mitigating factor in determining the sentence.

The legal issues before the court involved the relevance and weight to be given to hardship to third parties when sentencing an offender for importing prohibited goods. The court had to consider whether such hardship should be classified as "exceptional" in order to influence the sentence. The appellant contended that the trial judge had not appropriately factored in the significant impact the sentence would have on his family, who were dependent on his financial support. The Crown, on the other hand, maintained that the trial judge had correctly assessed the circumstances and that the appellant's personal hardship was not of the exceptional nature required to warrant a reduction in sentence.

The High Court found that the trial judge had indeed considered the appellant's submissions regarding the hardship to his family but had ultimately decided that it did not warrant a lesser sentence. The court emphasised that while hardship to third parties can be a relevant consideration in sentencing, it must be of an exceptional kind to significantly influence the sentence. The judges held that the trial judge's assessment of the hardship as not being exceptional was not erroneous. The appeal against the sentence was dismissed, affirming the trial judge's decision.

Orders