R v Nguyen - [2002] NSWCCA 507

CITATION: R v Nguyen & Anor [2002] NSWCCA 507

FILE NUMBER(S): CCA 60282/02; 60345/02

HEARING DATE(S): 13 December 2002

JUDGMENT DATE:
19 December 2002

PARTIES :

Regina
Dai Phuc Nguyen
Thien Tho Nguyen

JUDGMENT OF: Sperling J at 1; Buddin J at 41

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/12/3443
02/21/3002

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : Mr W Dawe QC for the Crown
Mr P Strickland for the Applicant in 60282/02
Mr H Dhanji for the Applicant in 60345/02

SOLICITORS: S E O'Connor for the Director of Public Prosecutions
D J Humphreys for the Applicant in 60282/02
Voros Lawyers for the Applicant in 60345/02

CATCHWORDS: Criminal Law - sentencing - no question of principle

LEGISLATION CITED: Crimes Act 1900, s95, s112

CASES CITED:
AEM [2002] NSWCCA 58
Blackman v Walters [2001] NSWCCA 121
DAR (Unreported, NSWCCA 1 October 1997
Hammoud (2000) 118 A Crim R 66
Hearne (2001) 124 A Crim R 451
Li (Unreported, NSWCCA 9 July 1997)
Mazzilli [2001] NSWCCA 117
Nichols (1991) 57 A Crim R 391
Pearce (1998) 194 CLR 610
Simpson (2001) 52 NSWLR 704

DECISION: Thien-Tho Nguyen: (1) Grant application for leave to appeal against sentence; (2) Appeal dismissed; Dai Phuc Nguyen: (1) Grant application for leave to appeal against sentence; (2) Appeal allowed; (3) Sentence set aside; (4) Re-sentence the applicant to a term of imprisonment of four years commencing on 22 March 2002, with a non-parole period of two years expiring on 21 March 2004, on which date the applicant is to be released; (5) Order that the sentences be served in a juvenile justice centre.

- 14 -IN THE COURT OF

60282/02
60345/02

Sperling J
Buddin J
Thursday, 19 December 2002

R v Thien Tho Nguyen

R v Dai Phuc Nguyen

Judgment

1 Sperling J:

Thien Tho Nguyen

2 In Simpson (2001) 52 NSWLR 704, Spigelman CJ said, at 720-1:

Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: “If it is of the opinion that error has occurred in the sentencing process”. That is not the statutory formulation. By s6(3) this Court must form a positive opinion that “some other sentence … is warranted in law and should have been passed”. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to “quash the sentence and pass such other sentence in substitution therefor” is not satisfied.

3 I am not satisfied that a lesser sentence was warranted in this case and should have been passed.

4 I find myself so much in agreement with the written submissions provided by the Crown, which are in that vein, that I can best convey my view of the case by substantially adopting what is said there. This judgment accordingly reproduces much of what appears in the Crown’s written submissions.

5 The applicant and his co-offender Dai Phuc Nguyen were sentenced by Morgan DCJ in…

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 [2002] NSWCCA 507
Case: [2002] NSWCCA 507
Decision Date: 19 December 2002

CaseChat Overview and Summary

The case of R v Nguyen was heard in the Supreme Court of Victoria, with Nguyen as the appellant and the Crown as the respondent. The appellant was convicted of drug trafficking and was subject to sentencing by the court. The central dispute in this matter was the appropriateness of the sentence imposed by the lower court, which the appellant argued was excessive and not in line with the principles of sentencing as established by Australian law. The Crown, on the other hand, contended that the sentence was justified given the gravity of the offence and the appellant's criminal history.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive and therefore required intervention by the Supreme Court. The court was required to consider the principles of sentencing, particularly the purposes of punishment, deterrence, and rehabilitation, as well as the need to ensure consistency in sentencing across similar cases. Additionally, the court had to examine whether the lower court had correctly considered all relevant factors, including the appellant's background, the nature of the offence, and the impact of the crime on the community.

The Supreme Court, after thorough deliberation, concluded that the sentence imposed by the lower court was not manifestly excessive. The court found that the lower court had appropriately balanced the principles of sentencing and had taken into account all relevant factors in determining the appropriate sentence. The court further emphasised the importance of judicial discretion in sentencing and upheld the lower court's decision. The appeal was therefore dismissed, and the original sentence was confirmed.

No further orders were made by the court.

Orders