R v Nguyen - [2004] NSWCCA 155

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v NGUYEN [2004] NSWCCA 155

FILE NUMBER(S):
60498 of 2003

HEARING DATE(S): 12 May 2004

JUDGMENT DATE: 12/05/2004

PARTIES:
REGINA
(Appellant)

TAM VAN NGUYEN
(Respondent)

JUDGMENT OF: Hodgson JA Levine J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0972

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
D Arnott
(Appellant)

P G Fisher
(Respondent)

SOLICITORS:
S Kavanagh
(Appellant)

S O'Connor
(Respondent)

CATCHWORDS:
Criminal law - Crown appeal - supply large commercial quantity (heroin) - supply cocaine - role of respondent - no basis for intervention

LEGISLATION CITED:
s25 Drugs Misuse and Trafficking Act 1985

DECISION:
Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60498 of 2003
HODGSON JA
LEVINE J
HOWIE J
Wednesday 12 May 2004

REGINA v TAM VAN NGUYEN

Judgment

THE COURT: This is an appeal by the Director of Public Prosecutions pursuant to s5D Criminal Appeal Act 1912 against the sentence imposed by his Honour Judge Shillington QC at the Sydney District Court on 14 November 2003. The Director gave notice of the appeal on 5 December of that year.
On Wednesday 12 May 2004 the Court ordered that the Crown appeal be dismissed undertaking to provide its reasons later.
These are the Court’s reasons.
On 4 August 2003 the respondent was found guilty after a trial lasting approximately 4 weeks of the following offences:
Count 1 - For that he between 1 November 2001 and 6 February 2002 at Fairfield and elsewhere in the state of New South Wales did supply a prohibited drug, namely heroin in an amount not less than (1 kilo) the large commercial quantity.
Count 2 – For that he between 1 November 2001 and 6 February 2002 at Fairfield and elsewhere in the state of New South Wales did supply a prohibited drug, namely, cocaine.
The offence under count 1 was pursuant to s25(2) Drugs Misuse and Trafficking Act 1985 and carried a maximum penalty of life imprisonment: s33(3)(a). Count 2 was an offence contrary to s25(1) and carried a maximum penalty of 15 years imprisonment: s32(1)(c).
The respondent was arraigned on an indictment which contained two counts of supply, one of supplying heroin and the other cocaine, both in amounts not less than the large commercial quantity. Each count also contained an alternative lesser count of supplying an amount of the relevant drug in an amount not less than the commercial quantity (250 grams). On the 11th day of the trial the respondent pleaded guilty in front of the jury to the alternative count to count 1. The Crown did not accept this plea nor ultimately did the jury accept it. In respect of count 2 the jury were not satisfied that the respondent supplied cocaine in either an amount not less than the large commercial quantity or even a commercial quantity, but rather an amount less than the commercial quantity.
The respondent was tried jointly with 2 co-offenders, Vien Duc Do and…

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 155
Case: [2004] NSWCCA 155
Decision Date: 12 May 2004

CaseChat Overview and Summary

The appeal before the court involved a conviction of a person identified as Nguyen for the supply of a large commercial quantity of heroin and the supply of cocaine. The Crown sought to appeal against the sentence imposed on the basis that it was manifestly inadequate. The matter was heard in the High Court of Australia, the highest court in the Australian judicial system.

The primary legal issue that the court was required to determine was whether the sentence imposed by the lower court was manifestly inadequate. In assessing this, the court considered the role of the respondent in the commission of the offences, the quantity of drugs supplied, and whether there were any mitigating factors that could be taken into account. The court also needed to consider whether there were any grounds for the court to intervene and impose a harsher sentence.

The court held that there was no basis for intervention in the sentence imposed by the lower court. In reaching this conclusion, the court found that while the quantity of drugs supplied was significant, there were no exceptional circumstances that warranted a departure from the sentence imposed by the lower court. The court also found that the role of the respondent in the commission of the offences did not warrant a harsher sentence. The court held that the sentence imposed was appropriate and did not require any intervention. The appeal was therefore dismissed.

The court did not make any orders as a result of the appeal. The sentence imposed by the lower court remained in place. The court's decision serves as a reminder that the imposition of a sentence is a matter for the discretion of the lower court and that the High Court will only intervene in exceptional circumstances.

Orders