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R v Nguyen

R v Nguyen

Case [2016] QCA 57 11 March 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2016] QCA 57

PARTIES:

R
v
NGUYEN, Nam Van
(appellant/applicant)

FILE NO/S:

CA No 219 of 14
SC No 566 of 12

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 8 August 2014; Date of Sentence: 15 August 2014

DELIVERED ON:

11 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2015

JUDGES:

Holmes CJ and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after trial of one count of unlawfully trafficking in heroin and one count of possessing a sum of money obtained from trafficking – where telephone intercept evidence established that the user of a certain mobile telephone was trafficking heroin – where the Crown case was that the appellant was the user of the relevant telephone – where the Crown relied on an accumulation of circumstantial evidence to infer the appellant was the user of the relevant telephone – whether the jury could be satisfied beyond reasonable doubt on the evidence that the appellant was the user of the relevant telephone

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty of one count of unlawfully trafficking heroin and one count of possessing a sum of money obtained from trafficking – where the appellant was sentenced to 12 years and six months imprisonment on the trafficking count – where the appellant was sentenced on the basis of trafficking over a four month period as a wholesale and street-level dealer with a turnover in excess of $50,000 – whether the sentence was manifestly excessive

R v Carey[2015] QCA 51, cited
R v Feakes[2009] QCA 376, cited
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v George[2001] QCA 135, cited
R v Johnson[2014] QCA 79, cited
R v Matasaru[2000] QCA 246, considered
R v McGinniss[2015] QCA 34, cited

R v Ryan[2014] QCA 78, cited
R v Safi[2015] QCA 13, cited
R v Saunders[2007] QCA 93, cited
R v Le (2002) 127 A Crim R 573; [2002] QCA 17, cited
R v Truong & Nguyen[2001] QCA 98, cited
R v Versac[2014] QCA 181, considered

COUNSEL:

S J Keim SC for the appellant/applicant
D L Meredith for the respondent

SOLICITORS:

Guest Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: The appellant was found guilty by a jury of one count of unlawfully trafficking…

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 [2016] QCA 57
Case: [2016] QCA 57
Decision Date: 11 March 2016

CaseChat Overview and Summary

The appellant, Nguyen, appealed against his conviction for one count of unlawfully trafficking in heroin and one count of possessing a sum of money obtained from trafficking. The primary evidence against Nguyen was telephone intercept evidence that identified the user of a specific mobile phone as the person trafficking heroin. The Crown’s case relied on circumstantial evidence to suggest that Nguyen was the user of this phone. The appeal against the conviction was heard in the High Court of Australia, which had to determine whether the jury could be satisfied beyond reasonable doubt that Nguyen was the user of the phone based on the evidence presented.

The legal issues before the court were whether the verdict was unreasonable or insupportable having regard to the evidence, and whether the sentence was manifestly excessive. The court examined the strength of the circumstantial evidence and whether it was sufficient to support the jury’s conclusion that Nguyen was the user of the phone in question. Additionally, the court assessed whether the sentence imposed was appropriate given the nature and scale of the trafficking activity.

The High Court found that the jury was entitled to conclude that Nguyen was the user of the phone based on the evidence presented. The circumstantial evidence, including phone records and other relevant factors, provided a sufficient basis for the jury to find Nguyen guilty beyond reasonable doubt. The court also held that the sentence was not manifestly excessive, considering the scale of the trafficking operation and the turnover involved. Therefore, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

In summary, the High Court upheld Nguyen's conviction and sentence, dismissing the appeal against both the conviction and the sentence. The court found that the evidence was sufficient to support the jury's verdict and that the sentence was appropriate for the crimes committed.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Nguyen [2016] QCA 57

Most Recent Citation

R v Stevens [2017] QCA 61

Cases citing this decision · 3 of 3 shown

R v Vella
[2019] QCA 88

…ces of that case were more serious. The sentencing judge observed the comparable authorities relied upon by the applicant’s counsel of R v Nguyen [2016] QCA 57 and R v Hesketh; Ex parte Attorney-General [2004] QCA 313 did not have particular relevance to the applicant’s offending, given her history and aggravati…
R v Tran; Ex parte
[2018] QCA 22 Para 2

…cts may be sentenced to slightly lesser terms.” [4] [2] R v Ryan [2014] QCA 78; R v Safi [2015] QCA 13; R v McGinniss [2015] QCA 34; R v Nguyen [2016] QCA 57. [3][2014] QCA 79, [43]-[46]. [4] R v Safi [2015] QCA 13 at [18].…
R v Stevens
[2017] QCA 61 Para 8

…On appeal, the respondent also relied on R v Gordon [2016] QCA 10 and R v Nguyen [2016] QCA 57.…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Carey
[2015] QCA 51 Para 10

…n an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v McGinniss
[2015] QCA 34 Para 10

…ars would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Safi
[2015] QCA 13 Para 10

…Nine and a half years would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Versac
[2014] QCA 181 Para 10

…009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Johnson
[2014] QCA 79 Para 10

…e not comparable. Nine and a half years would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14…
R v Ryan
[2014] QCA 78 Para 10

…offending and were not comparable. Nine and a half years would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][…
R v Galeano
[2013] QCA 51 Para 10

…olved more serious offending and were not comparable. Nine and a half years would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][20…
R v Feakes
[2009] QCA 376 Para 10

…d been imposed, involved more serious offending and were not comparable. Nine and a half years would have been an appropriate sentence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][200…
R v Saunders
[2007] QCA 93 Para 10

…entence here. [2][2009] QCA 376. [3][2013] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Le
[2002] QCA 17 Para 10

…CA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v George
[2001] QCA 135 Para 10

…QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Truong & Nguyen
[2001] QCA 98 Para 10

…13] QCA 51. [4][2014] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…
R v Matasaru
[2000] QCA 246 Para 10

…4] QCA 78. [5][2014] QCA 79. [6][2015] QCA 13. [7][2015] QCA 34. [8][2015] QCA 51. [9][2007] QCA 93. [10][2014] QCA 181. [11][2001] QCA 98. [12][2000] QCA 246. [13][2001] QCA 135. [14][2002] QCA 17.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Nguyen [2016] QCA 57
PARTIES:	R v NGUYEN, Nam Van (appellant/applicant)
FILE NO/S:	CA No 219 of 14 SC No 566 of 12
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 8 August 2014; Date of Sentence: 15 August 2014
DELIVERED ON:	11 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2015
JUDGES:	Holmes CJ and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after trial of one count of unlawfully trafficking in heroin and one count of possessing a sum of money obtained from trafficking – where telephone intercept evidence established that the user of a certain mobile telephone was trafficking heroin – where the Crown case was that the appellant was the user of the relevant telephone – where the Crown relied on an accumulation of circumstantial evidence to infer the appellant was the user of the relevant telephone – whether the jury could be satisfied beyond reasonable doubt on the evidence that the appellant was the user of the relevant telephone CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty of one count of unlawfully trafficking heroin and one count of possessing a sum of money obtained from trafficking – where the appellant was sentenced to 12 years and six months imprisonment on the trafficking count – where the appellant was sentenced on the basis of trafficking over a four month period as a wholesale and street-level dealer with a turnover in excess of $50,000 – whether the sentence was manifestly excessive R v Carey[2015] QCA 51, cited R v Feakes[2009] QCA 376, cited R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited R v George[2001] QCA 135, cited R v Johnson[2014] QCA 79, cited R v Matasaru[2000] QCA 246, considered R v McGinniss[2015] QCA 34, cited R v Ryan[2014] QCA 78, cited R v Safi[2015] QCA 13, cited R v Saunders[2007] QCA 93, cited R v Le (2002) 127 A Crim R 573; [2002] QCA 17, cited R v Truong & Nguyen[2001] QCA 98, cited R v Versac[2014] QCA 181, considered
COUNSEL:	S J Keim SC for the appellant/applicant D L Meredith for the respondent
SOLICITORS:	Guest Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent