R v Nguyen - [2022] SASCA 128

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v NGUYEN
[2022] SASCA 128
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
1 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
The respondent was sentenced for one count of trafficking in a controlled drug on 6 December 2019, namely heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty was $10,000 or imprisonment for 10 years. At the same time, the respondent was sentenced for breaching bail by attending a prohibited address, as well as for a charge of possessing a prescription drug. These offences were committed during February and March 2021.
For the subject offending, the respondent was sentenced to a term of imprisonment of two years and one day, with a non-parole period fixed of one year and 20 days. It was ordered that the sentence be served on home detention.
The Director applied for permission to appeal against the sentence and contended that both the head sentence and non-parole period were manifestly inadequate and that the sentencing judge erred in ordering that the sentence be served on home detention having regard to the circumstances of the offending and the respondent’s antecedents.
The Court held:
1. The sentence which was imposed was not manifestly inadequate.
2.Even if it had been demonstrated that the sentence was manifestly inadequate, this is not a case in which it is appropriate to grant the Director permission to appeal sentence.

3. Permission to appeal refused.
Controlled Substances Act 1984 (SA) s 32; Criminal Procedure Act 1921 (SA) s 157; Criminal Law Consolidation Act 1935 (SA) s 20, s 24; Sentencing Act 2017 (SA) s 26, referred to.
Adeseolu v The King [2022] SASCA 113; Director of Public Prosecutions v Dalgleish (2017) 262 CLR 428; Everett v The Queen (1994) 181 CLR 295; R v Buttigieg (2020) 352 FLR 170; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Hosking (2017) 128 SASR 37; R v McInerney (1986) 42 SASR 111; R v Nguyen [2004] SASC 405; R v Osenkowski (1982) 30 SASR 212; R v Yaroslavceff [2022] SASCA 123; R v Young (2016) 126 SASR 41, considered.

R v NGUYEN
[2022] SASCA 128
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

The Director of Public Prosecutions (SA) applies for permission to appeal against sentence pursuant to s 157 of the Criminal Procedure Act 1921 (SA).
On 17 June 2022, the respondent was sentenced for one count of trafficking in a controlled drug on 6 December 2019, namely heroin, contrary to s 32(3) of the Controlled…

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 [2022] SASCA 128
Case: [2022] SASCA 128
Decision Date: 1 December 2022

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a sentence imposed on the respondent, Mr Nguyen, by the County Court. The appeal concerned whether the sentence was manifestly inadequate.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the County Court was so inadequate as to warrant intervention. This involved considering whether the sentence undermined public confidence in the administration of justice to such an extent that the respondent should be returned to prison after serving a period of home detention.

The Court of Appeal found that it had not been demonstrated that the sentence was manifestly inadequate. Furthermore, even if inadequacy had been established, the Court determined that this was not a case where granting the Director permission to appeal sentence was appropriate, citing no strong reasons of public policy that would justify further vexing the respondent.

Consequently, the application for permission to appeal sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if the conclusion of error were open, however, this case presents no opportunity to establish or correct any sentencing principle. There are no strong reasons of public policy which justify the intervention of this Court so as to twice vex this respondent. It has not been demonstrated that the sentence is so inadequate that it would, if left uncorrected, so undermine public confidence in the administration of justice that the respondent should now be returned to prison after serving more than five months on home detention.Conclusion It has not been demonstrated that the sentence which was imposed is manifestly inadequate. However, even if that had been demonstrated, this is not a case in which it is appropriate to grant the Director permission to appeal sentence. The application for permission to appeal sentence should be dismissed.

Ratio Decidendi

Legal Principle Established

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