R v Nguyen - [2018] SASCFC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2018] SASCFC 65
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
19 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against a sentence of nine years with a non-parole of four years and six months imposed in the District Court following a conviction of two offences of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA), an offence of money laundering contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) and an offence of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
The appellant was convicted after a short trial by Judge alone, in which the primary dispute was the lawfulness of the search of a car driven by him which revealed evidence of the commission of the offences. Accordingly, the appellant was not entitled to any reduction in penalty for a plea of guilty. Moreover, after his conviction there was a disputed facts hearing in which the appellant claimed that he was a mere conduit for the drugs and money which belonged to another person. The Judge rejected his account.
Held per Kourakis CJ (Stanley and Bampton JJ agreeing), dismissing the appeal:
1. The reasons of the sentencing Judge were adequate (at [23]-[27]).
2. The sentencing Judge did not err in finding that the appellant was trafficking in his own right (at [28]).
3. The Judge ought not to have identified separate sentences imposed for the individual offences before proceeding to impose a single sentence of nine years because embarking on that exercise in this case would have been quite artificial (at [29]).
4. The sentence was not manifestly excessive. The head sentence of nine years and non-parole period of four years and six months is a moderate one (at [31]).
Controlled Substances Act 1984 (SA) s 32(2); Criminal Law Consolidation Act 1935 (SA) s 138(1); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549, applied.
R v Young (2016) 126 SASR 41, discussed.

R v NGUYEN
[2018] SASCFC 65
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: The appellant, Mr Nguyen, appeals against a sentence of nine years with a non-parole of four years and six months imposed in the District Court on his conviction of the following offences:
●two offences of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (the CSA);
●an offence of money laundering contrary to s…

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 [2018] SASCFC 65
Case: [2018] SASCFC 65
Decision Date: 19 June 2018

CaseChat Overview and Summary

The appeal concerned Mr. Nguyen, who was sentenced by a judge in the District Court. The dispute arose from Mr. Nguyen's conviction for drug offences, specifically involving the possession and supply of methylamphetamine, and the subsequent imposition of a head sentence of nine years imprisonment with a non-parole period of four years and six months.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the trial judge was manifestly excessive, thereby warranting appellate intervention. This involved considering the totality of the circumstances, including the appellant's personal history, the nature and extent of his offending, and his prospects for rehabilitation.

The Court, comprising Kourakis CJ, Stanley J, and Bampton J, ultimately dismissed the appeal. The Chief Justice, in reasons agreed to by the other judges, found the head sentence to be moderate, acknowledging that but for Mr. Nguyen's prior good character and strong prospects of rehabilitation, a more substantial sentence, potentially exceeding 10 years, might have been imposed. The Court took into account the significant evidence of Mr. Nguyen's efforts to overcome drug and gambling addictions and his insight into his offending, but concluded that these factors, while mitigating, did not render the imposed sentence unduly severe given the gravity of the drug offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Nguyen was 42 years of age when sentenced. He was born in 1975 and arrived in Australia with his family seven years later. He completed year 12 at Christian Brothers College after which he found work in the IT industry. He has no prior convictions of relevance. The Judge accepted what his Honour described as ‘a substantial body of persuasive material’, attesting to Mr Nguyen’s substantial and successful endeavours to overcome drug and gambling addictions. The Judge also observed that psychological reports placed before the Court described Mr Nguyen as having a good degree of insight into his offending. The Judge concluded that Mr Nguyen could not have done, or achieved, much more in ‘demonstrating an intention and resolve to reform and keep away from drugs’.The appellant’s evidence Mr Nguyen testified that he commenced using methylamphetamine late in 2012. He found himself addicted within six months. He initially paid for methylamphetamine through his social security payments but then asked his dealers for credit. He would purchase a ‘point’ of methylamphetamine for $100. At one stage he was consuming methylamphetamine to the value of $4,000 a week. Mr Nguyen gave evidence that he eventually came to owe his dealer $40,000 to $50,000. He described ‘nagging’ his dealer to supply more on credit even after he had amassed that much debt but the dealer refused. However, the dealer told him that it was time that he did something to ‘work off’ the debt. The dealer asked the appellant to carry out errands which involved ‘driving around and picking up packages and dropping off packages for him’. From late 2013 Mr Nguyen would buy and sell methylamphetamine on instructions received by text from his dealer. Mr Nguyen testified that the dealer had told him to pick up the methylamphetamine found in the car and to store it for a couple of days before dropping it off in accordance with instructions which would be sent to him by text. He gave the same explanation for the larger quantity found in his home. The methylamphetamine had been in his parents’ house for about two weeks. Mr Nguyen testified that he accumulated the cash amount of $143,950 over ‘the course of a couple of months’. He explained that he did a few pickups and drop offs and would store the money at his parents’ house until told to drop the money off for his dealer. The cash was the proceeds of eight to 10 pickups and had been in the house for about four weeks. When asked to describe the state of his addiction, Mr Nguyen replied ‘It was pretty bad. It was really bad’. That laconic response provoked the following leading questions:QSo are we to assume that you were using consistently during that time.AYes.QWhere did you get the methamphetamine from that you used.AEvery time he sends me to drop off, I would open it up and get a little bit out for myself.QSo in other words, you had a consistent supply in the course of doing these drop-offs and pick-ups as you’ve described.AYes.

Decision

Reasons for decision

Having regard to all of the circumstances and competing considerations, the head sentence of nine years and non-parole period of four years and six months is a moderate one. But for the appellant’s prior good character and strong prospects of rehabilitation, a more substantial head sentence, indeed a sentence exceeding 10 years, might have been imposed.Conclusion I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice

Ratio Decidendi

Legal Principle Established

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