R v Nguyen - [2000] NSWCCA 547

CITATION: R v Nguyen [2000] NSWCCA 547

FILE NUMBER(S): CCA 60687/99

HEARING DATE(S): 8/12/00

JUDGMENT DATE:
8 December 2000

PARTIES :

Regina
James Nguyen

JUDGMENT OF: Dowd J at 1; Howie J at 42

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0344

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : LMB Lamprati- Crown
L Flannery- Appellant

SOLICITORS: SE O'Connor- Crown
DJ Humphreys- Appellant

CATCHWORDS: Criminal Law - Appeal against severity of sentence - Heroin supply - Parity - No justifiable sense of grievance - No special circumstances

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Sentencing Act 1989

CASES CITED:
Phelan (1993) 66 A Crim R 446.
R v Hauser (Unreported, NSWCCA, 11 December 1997, Gleeson CJ, Dunford and Barr JJ).
R v Luong [2000] NSWCCA 139.

DECISION: 1. Leave Granted; 2. Appeal Dismissed.

IN THE COURT OF
CRIMINAL APPEAL
DOWD J
HOWIE J
60687/99

8 DECEMBER 2000

REGINA v JAMES NGUYEN
JUDGMENT
1 DOWD J: This is an application for leave to appeal against the severity of the sentence imposed on the applicant, James Nguyen, also known as Sang Duc Nguyen, who had entered a plea of guilty before Gibson DCJ at the Penrith District Court on 15 October 1999, to a charge under s25 of the Drug Misuse and Trafficking Act 1985, for supplying a commercial quantity of a prohibited drug, being heroin. The maximum penalty is twenty years imprisonment.
2    On 15 October 1999, the applicant was sentenced to six years imprisonment, to be served by way of a minimum term of four and a half years to commence on 14 January 1999, being the date that he was arrested, and to expire on 13 July 2003. An additional term of eighteen months was imposed to commence on 14 July 2003, upon which date the applicant would be eligible to apply for parole.
3    The facts are that on 14 January 1999, as the applicant and his wife, Loan Phuong Luong, were travelling from Melbourne to Sydney in a hired car, they were stopped by police on the Hume Highway at Bowna. At the time, the applicant was driving and his wife was a passenger.
4    A police officer carried out a breathalyser test on the applicant, and asked him where they had been travelling from. When spoken to, both the applicant and his wife appeared nervous. The police then asked to view a few items contained in the vehicle, whereupon the applicant produced to the police a lady’s handbag which contained a large amount of money. The applicant informed the police that there was some $12,000 in the bag.
5    At the time, the police noticed that part of the rear floor carpet in the vehicle was not fitted correctly. The police then found a set of electronic scales inside the lady’s handbag.
6    Both the applicant and his wife left the car and began speaking to each other in a foreign language unknown to the police. They were soon separated…

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 [2000] NSWCCA 547
Case: [2000] NSWCCA 547
Decision Date: 8 December 2000

CaseChat Overview and Summary

The matter before the court involved an appeal against the severity of a sentence imposed on the respondent, Nguyen, who had been convicted for the supply of heroin. The appeal was heard in the Supreme Court of Victoria. The appellant, Nguyen, argued that the sentence imposed was excessively severe in comparison to similar cases, and that there were no justifiable grounds for such disparity.

The court was tasked with determining whether the sentence was unjust or disproportionate, and if any special circumstances warranted a reduction. The key issue was whether the sentence imposed was so severe as to give rise to a justifiable sense of grievance. The court also considered whether there were any exceptional circumstances that should lead to a modification of the sentence.

In delivering the judgment, the court found that the sentence imposed on Nguyen was not excessive or disproportionate to the crime committed. The court emphasised that the sentencing judge had thoroughly considered the matter and had applied the relevant principles correctly. The court concluded that there was no justifiable sense of grievance and no special circumstances that would warrant a reduction in the sentence. The appeal was therefore dismissed.

The court ordered that the sentence imposed by the trial judge remain in effect. Nguyen was to continue serving the term as originally determined, with no modification to the length or conditions of the sentence. The court's decision upheld the trial judge's assessment of the appropriate punishment for the offence of heroin supply.

Orders