R v Nguyen - [2004] NSWCCA 332

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v Ngoc Anh aka John NGUYEN [2004] NSWCCA 332

FILE NUMBER(S):
2004/2027

HEARING DATE(S): 22 September 2004

JUDGMENT DATE: 27/09/2004

PARTIES:
Regina
Ngoc Anh aka John Nguyen

JUDGMENT OF: Spigelman CJ Barr J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/03/2004

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

COUNSEL:
G I O Rowling (Crown)
D J Fagan SC (Respondent)

SOLICITORS:
S Kavanagh (Crown)
S E O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW
Perverting the course of justice by police officer
Crown appeal against manifest inadequacy of non-custodial sentence
Offender being a police officer is a relevant consideration, when offence committed in a private capacity
Denunciation entitled to more weight when sentencing a police officer for offence involving interference with the administration of justice

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
National Parks and Wildlife Act 1974

DECISION:
Appeal allowed

JUDGMENT:

- 16 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2027
SPIGELMAN CJ
BARR J
HOEBEN J
Monday 27 September 2004

REGINA v Ngoc Anh aka John NGUYEN

Judgment

SPIGELMAN CJ: The Respondent was a Detective Sergeant of the New South Wales Police Service. On 8 April 2004 he pleaded guilty to the most serious of six counts on an indictment which the Crown accepted in full satisfaction of the indictment. The charge to which he pleaded guilty was:
“Between 27 April 2003 and 25 July 2003 at Sydney in the State of New South Wales he did pursue a course of conduct in order to procure Steven Ho to plead guilty to a charge of ‘goods in custody’ knowing that Steven Ho was not guilty of the charge with intent thereby to pervert the course of justice.”
The man Steven Ho referred to in the charge was related to Huong Nguyen, the Respondent’s wife.
The offence is created by s319 of the Crimes Act 1900 and carries a maximum sentence of 14 years imprisonment.
27 April 2003, the date on which the course of conduct constituting the offence to which the Respondent pleaded guilty commenced, was the day on which Huong Nguyen, a flight attendant with Vietnam Airlines, arrived at Sydney International Airport to perform her duties on a departing Vietnam Airlines flight. Customs officers searched her hand luggage and found ten mobile phones. During the course of the search Huong Nguyen’s personal mobile phone was contacted on about five occasions. Ms Nguyen disclosed that the caller was her husband and identified him as a New South Wales police officer.
On 28 April 2003 Customs officials provided advice to the Special Crime and Internal Affairs Command and an investigation was launched. Inquiries confirmed that four of the handsets were stolen.
The Respondent apprehended that his wife’s involvement could impact on her application for residency in Australia.
Between 28 and 29 April 2003, the Respondent made contact with Customs officers in an attempt to claim the mobile phones, allegedly on behalf of the owner. Customs provided advice to…

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 [2004] NSWCCA 332
Case: [2004] NSWCCA 332
Decision Date: 27 September 2004

CaseChat Overview and Summary

In the case of R v Nguyen, the respondent was found guilty of perverting the course of justice. The respondent was a police officer at the time of the offence. The matter was heard in the Court of Criminal Appeal. The Crown appealed against the sentence imposed on the respondent, arguing it was manifestly inadequate.

The central issue before the court was whether the respondent's status as a police officer at the time of the offence warranted a harsher sentence than would have been imposed on a layperson. The appeal focused on the sentencing principles applicable to police officers who commit offences involving interference with the administration of justice. The court was required to determine the appropriate weight to give to the respondent's status as a police officer when sentencing for the offence of perverting the course of justice.

The court held that the fact that the offender was a police officer was a relevant consideration when determining the appropriate sentence. The court noted that the offence of perverting the course of justice was particularly serious when committed by a police officer, as it involved a breach of the trust placed in those who enforce the law. The court found that the sentencing principles required a sentence that reflected the need for denunciation and deterrence, given the respondent's position of authority and responsibility. The court held that the original sentence imposed on the respondent was manifestly inadequate and ordered a more severe penalty.

The court made orders that the appeal be allowed, the sentence be quashed, and the respondent be re-sentenced.

Orders