R v Nguyen - [2005] SASC 329

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
31 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Application by DPP for leave to appeal against sentence – Respondent pleaded guilty to possessing heroin for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 and unlawful possession contrary to s 41 Summary Offences Act 1953 – Respondent addicted to gambling and accumulated substantial debt – Creditor induced respondent to facilitate sale of heroin as means of repaying debt – Single suspended sentence imposed of 4 years 3 months imprisonment with 2 years non-parole period – Whether decision to suspend was attended by error – Whether irrelevant considerations taken into account – Whether suspension would shock the public conscience – Leave to appeal granted – Appeal allowed – Head sentence confirmed but not suspended – Non-parole period of 15 months fixed.
Controlled Substances Act 1984 (SA) s 32(1)(e); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(j) and s 18A, referred to.
Everett v The Queen (1984) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Burrt (1987) 139 LSJS 235; R v Mangelsdorf (1995) 66 SASR 60, applied.
R v Watson (1981) 3 A Crim R 254; Police v John (1995) 79 A Crim R 510; R v Di Maria (1996) 67 SASR 466; R v Proon (2003) 85 SASR 120, considered.

R v NGUYEN
[2005] SASC 329
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I agree with the orders proposed by Bleby J. I agree with his reasons. There is nothing that I wish to add.
BLEBY J: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a Judge of the District Court.
The respondent pleaded guilty to one count of possessing heroin for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 and to one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 relating to certain electrical equipment and mobile phones.
The offence occurred on 3 November 2003. As a result of a search of the respondent’s house, police located a number of balloons containing in total 5.53g of a white powder, which on analysis was found to contain 1.19g of heroin, indicating the powder was approximately 20% pure heroin. The police also found goods they suspected had been exchanged for drugs, including a DVD player, several VCRs and mobile phones.
The respondent had a serious gambling addiction and had accumulated a large amount of debt as a result. He was induced by a…

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 [2005] SASC 329
Case: [2005] SASC 329
Decision Date: 31 August 2005

CaseChat Overview and Summary

In the case of R v Nguyen, the applicant, the Director of Public Prosecutions (DPP), sought leave to appeal against the sentence imposed on the respondent, Nguyen. Nguyen had pleaded guilty to charges of possessing heroin for sale and unlawful possession. The background to the charges was that Nguyen, who was addicted to gambling, had accumulated a substantial debt. His creditor had then induced him to facilitate the sale of heroin as a means of repaying this debt. The trial judge imposed a single suspended sentence of 4 years and 3 months imprisonment, with a non-parole period of 2 years. The appeal centred on the decision to suspend the sentence, the considerations taken into account, and whether the suspension would shock the public conscience.

The primary legal issues before the court were whether the decision to suspend the sentence was attended by an error, whether irrelevant considerations had been taken into account, and whether the suspension would shock the public conscience. The DPP argued that the trial judge had not adequately considered the gravity of the offences and the need for general deterrence. The court had to weigh the mitigating factors, such as Nguyen's addiction and the influence of his creditor, against the seriousness of the crimes committed.

The court granted leave to appeal and allowed the appeal, concluding that the decision to suspend the sentence was indeed attended by an error. The court held that the trial judge had not sufficiently emphasised the need for general deterrence and had taken into account irrelevant considerations. Additionally, the court found that the suspension would shock the public conscience, given the nature of the offences and the respondent's history. The head sentence of 4 years and 3 months imprisonment was confirmed, but the suspension was set aside. A non-parole period of 15 months was fixed, reflecting the court's reassessment of the appropriate punishment.

The final orders of the court confirmed the head sentence but removed the suspension. The non-parole period was reduced from 2 years to 15 months. This outcome underscores the importance of balancing mitigating factors with the need for general deterrence and appropriate punishment for serious criminal offences.

Orders