R v Nguyen

Case [2002] NSWCCA 183

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     Regina v Van Nam Nguyen [2002]  NSWCCA 183

FILE NUMBER(S):
60111/02

HEARING DATE(S):    16 May 2002

JUDGMENT DATE:      16/05/2002

PARTIES:
Van Nam Nguyen (Respondent)
Crown (Appellant)

JUDGMENT OF:        Stein JA Bergin J Carruthers AJ   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/11/0903

LOWER COURT JUDICIAL OFFICER:   Coorey DCJ

COUNSEL:
P G Ingram (Appellant)
M Thangaraj (Respondent)

SOLICITORS:
S E O'Connor (Appellant)
Michael Croke & Associates (Respondent)

CATCHWORDS:
Crown appeal against sentence imposed for guilty plea under s 25(2) of the Drug Misuse and Trafficking Act for supply of not less than the commercial quantity (700g) of heroin; Form 1 offence for supply of not less than the commercial quantity (700g) of heroin.

LEGISLATION CITED:
Crime (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

DECISION:
See para 77.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60111/2002

Stein JA

Bergin J

Carruthers AJ

16 May 2002

REGINA v VAN NAM NGUYEN

JUDGMENT

  1. STEIN JA:           I agree with Bergin J. 

  2. BERGIN J:  This is a Crown appeal from a sentence imposed on the respondent, Van Nam Nguyen, by his Honour Judge Coorey in the District Court on 6 February 2002. The respondent pleaded guilty to a count on indictment that he supplied not less than the commercial quantity of a prohibited drug, namely heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act (the Act) 1985.  The maximum penalty for this offence is 20 years imprisonment and/or $385,000: s.33(2)(a) of the Act.

  3. There was also a Form 1 matter that the respondent asked to be taken into account on sentencing. The charge on the Form 1 was knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely heroin: s.25(2) of the Act.  The maximum penalty is 20 years imprisonment and/or a fine of $385,000.

  4. The sentence imposed by Coorey DCJ, taking into account the matter on Form 1, was a term of imprisonment for 5 ½ years to commence on 18 November 2000 and to expire on 17 May 2006.  His Honour imposed a non parole period of 2 ½ years to commence on 18 November 2000 and to expire on 17 May 2003. 

    Facts

  5. The facts before the sentencing judge disclosed that the National Crime Authority had conducted an investigation in conjunction with the Queensland Police service and the Queensland Crime Commission (the Police) into the alleged sale and distribution of heroin from Sydney to the Gold Coast.  That investigation initially focused on two persons on the Gold Coast, Neagu Petrea (Petrea) and his associate Pompiliu Tutoveanu and a person in Sydney, Tare Antin Kirikian also known as David Kirikian (Kirikan).

  6. The investigation involved physical surveillance, electronic surveillance and telephone interception material.  The facts before his Honour stated that the interception material had assisted in identifying the respondent as the Sydney heroin supplier.  Further inquiries also identified Charles Sukkar (Sukkar) as acting as an intermediary between the…

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Details
AGLC
R v Nguyen [2002] NSWCCA 183
Case
[2002] NSWCCA 183
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on Nguyen, who had pleaded guilty to supplying a commercial quantity of heroin under section 25(2) of the Drug Misuse and Trafficking Act and on a Form 1 offence. The case was heard in the NSW Court of Criminal Appeal. The central issue before the court was whether the sentence imposed by Coorey DCJ was manifestly excessive. Coorey DCJ had sentenced Nguyen to five and a half years' imprisonment, with a non-parole period of two and a half years, for the supply of a commercial quantity of heroin. The Crown argued that the sentence was manifestly excessive and did not adequately reflect the seriousness of the offence.

The court considered the severity of the offence, the role of Nguyen in the drug trafficking operation, and the need to deter similar conduct. The court held that the sentence imposed by Coorey DCJ was manifestly excessive. The court noted that Nguyen's role in the drug trafficking operation was significant, and the quantity of heroin involved was substantial. The court also considered the need to deter similar conduct and the impact of drug trafficking on the community. The appeal was allowed, and the matter was remitted to the District Court for resentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the District Court for resentencing. The court did not provide specific guidelines for the re-sentencing, leaving it to the discretion of the sentencing judge to impose an appropriate sentence that reflected the seriousness of the offence and the need for deterrence.

Orders

Orders of the court

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Background

Background to the litigation

The sentence imposed by Coorey DCJ, taking into account the matter on Form 1, was a term of imprisonment for 5 ½ years to commence on 18 November 2000 and to expire on 17 May 2006. His Honour imposed a non parole period of 2 ½ years to commence on 18 November 2000 and to expire on 17 May 2003. Facts The facts before the sentencing judge disclosed that the National Crime Authority had conducted an investigation in conjunction with the Queensland Police service and the Queensland Crime Commission (the Police) into the alleged sale and distribution of heroin from Sydney to the Gold Coast. That investigation initially focused on two persons on the Gold Coast, Neagu Petrea (Petrea) and his associate Pompiliu Tutoveanu and a person in Sydney, Tare Antin Kirikian also known as David Kirikian (Kirikan). The investigation involved physical surveillance, electronic surveillance and telephone interception material. The facts before his Honour stated that the interception material had assisted in identifying the respondent as the Sydney heroin supplier. Further inquiries also identified Charles Sukkar (Sukkar) as acting as an intermediary between the respondent, Kirikian and Tutoveanu in facilitating the heroin supply. At approximately 9 pm on Saturday 14 October 2000 Petrea and two associates, Florin and Bogdan Pascu, departed from Tutoveanu’s Gold Coast residence and travelled in Tutoveanu’s vehicle to Sydney. On 15 October Petrea obtained two 350g blocks of heroin from the respondent while at Kirikian’s former residence at 18-20 Norfolk Street Liverpool Sydney. This is the matter on the Form 1 which the respondent asked to be taken into account on sentence. The facts disclosed that on the morning of 16 October 2000 the police intercepted the vehicle driven by the Pascus as it travelled back over the Queensland border into the Coolangatta area from New South Wales. A search of the vehicle located a package in the glove box that contained the two 350g blocks of heroin. Both Florin and Bogdan Pascu were charged with unlawful possession and unlawful supply of heroin under the Drugs Misuse Act (Qld). The monitoring of intercepted phone calls subsequent to the Pascus arrest revealed planning and arrangements by Petrea, Tutoveanu, Kirikian, Florin Pascu, Sukkar and the respondent for the supply of a further 700g of heroin. On 14 November 2000 Petrea flew to Sydney and on 15 November met with Kirikian and Sukkar at the Sheraton Hotel in Sydney. Electronic surveillance revealed that Petrea and Kirikian intended to send Sukkar to Perth. Sukkar indicated that he would drive to Perth and fly back, because he was not comfortable carrying what he referred to as “the other thing” on a flight. On 16 November 2000 Tutoveanu and Pascu flew to Sydney and hired a vehicle from the airport. They travelled to the Lone Star restaurant at Warwick Farm where they met with Petrea and Sukkar. Tutoveanu, Pascu, Petrea and Sukkar then travelled to the Hunts Motel at Casula.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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