SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Appeal against sentence - Plea of guilty to one count of knowingly taking part in the sale of heroin - Agreed factual basis of the plea - Appellant knowingly allowed two of her children to sell heroin from her residence - Appellant indirectly benefited financially from the sale - Sentenced to five years imprisonment with a non-parole period of two years - Whether allowance should have been made for guilty plea - Whether allowance should have been made for prevous periods in custody and on home detention bail - Whether appropriate weight given to Appellant's personal circumstances - Whether sentence manifestly excessive - Whether sentencing Judge erred in failing to suspend the sentence - Appeal allowed - Reduction in sentence
Controlled Substances Act 1984 s 32, s 44; Criminal Law Sentencing Act 1988 s 30(2)(a), s 10, s 11; Criminal Assets Confiscation Act 1996 s 8, s 9, s 10, s 15, referred to.
Signato v The Queen (1998) 194 CLR 656; Cameron v The Queen (2002) 209 CLR 339, applied.
R v Allen (1999) SASC 321; R v Malesevic (1999) 204 LSJS 32; R v Carpentieri (2001) 81 SASR 164; O'Malley v French (1971) 2 SASR 110; Anderson v The Queen (1993) 177 CLR 520; R v Perre (1986) 41 SASR 105; R v Mangelsdorf (1995) 66 SASR 60, considered.
R v NGUYEN
[2004] SASC 405Court of Criminal Appeal: Duggan, Bleby and Anderson JJ.
DUGGAN J: The background to this appeal and the circumstances surrounding the offence are set out in detail in the reasons for decision of Bleby J.
I agree with Bleby J and Anderson J that this appeal should be allowed. In reaching this view I place particular reliance on two factors. Firstly, no allowance was made for the plea of guilty. The uncontested history of the steps which led to the plea render it appropriate that some reduction be made on this account. Secondly, I think that insufficient regard was paid to the unique circumstances of the offending which justified a measure of leniency.
Nevertheless, the appellant committed a serious offence of a continuous nature. Of particular relevance is the fact that she permitted an apparently well-organised operation for the sale of heroin to take place over a period of approximately 12 months. It was not suggested that she was unaware that her children were breaking the law in a serious way by selling heroin and she must have realised that she was assisting them to do so. An aggravating feature of her offending was that she appears to have continued despite the first police search of the premises and after…
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- AGLC
- R v Nguyen [2004] SASC 405
- Case
- [2004] SASC 405
- Decision Date
CaseChat Overview and Summary
The court found that Nguyen's personal circumstances were relevant to the sentence which should be imposed. The delay in sentencing, the appellant's heritage, background, migration, and life in Australia since migration were all relevant. The court agreed with the exercise carried out regarding the time spent in custody and on home detention, and concluded that the sentence imposed was manifestly excessive. However, the court did not agree that the sentence should be suspended. The court found that there are a variety of factors which require the appellant to serve a term of imprisonment.
The appeal was allowed, and the sentence was reduced. The court fixed a fresh head sentence of two years and eight months with a non-parole period of ten months, to take effect from the date of the decision. The court directed that the sentence be suspended on condition that Nguyen enter into a bond to be of good behaviour for a period of two years, under the supervision of a Community Corrections Officer, and obey the lawful directions of the officer assigned to her. However, as the majority of the Court did not favour suspension of the sentence, the appropriate sentence to be imposed was a head sentence of three years and one month with a non-parole period of fifteen months, commencing on a specified date. The court made this order on the condition that any forfeiture of Nguyen's property was limited to the purpose of recovering any benefit which she had received or in which she had participated with members of her family.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
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