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R v Nguyen

R v Nguyen

Case [2015] QCA 205 27 October 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2015] QCA 205

PARTIES:

R
v
NGUYEN, Thang Huy
(applicant)

FILE NO/S:

CA No 88 of 2015
SC No 543 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Unreported, 30 January 2015

DELIVERED ON:

27 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2015

JUDGES:

Fraser and Gotterson JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of possession of dangerous drugs, namely methylamphetamine and 3,4-methylenedioxymethamphetamine – where the applicant was sentenced to imprisonment for a period of two years and six months – where the applicant was intercepted by police and found to be in possession of 13.051 grams of pure methylamphetamine as well as 0.441 grams of MDMA – where the learned sentencing judge made a finding that the methylamphetamine was to be used for a commercial purpose although his Honour was not prepared to make a positive finding that sales were to be made by the applicant himself – where the applicant was 27 years old at the time of offending, married and had two children – where the applicant had a previous conviction for trafficking in the dangerous drug heroin at the age of 17 – where the applicant submits that the sentence is manifestly excessive in that insufficient regard was given to the applicant’s psychological vulnerability in prison and to the strain placed on the applicant by his wife’s mental illness – where allied with these factors was a further submission that too much weight was placed upon the applicant’s prior offending – whether the sentence is manifestly excessive

Drugs Misuse Act 1986 (Qld), s 9(b), s 9(d)

R v Bankier, Unreported, Dutney J, SC No 996 of 2007 & SC No 205 of 2008, 25 March 2008, considered
R v Beasley[2013] QCA 322, cited
R v Duggan[2004] QCA 442, considered
R v Fabre[2008] QCA 386, cited
R v Gillbanks[2015] QCA 148, cited
R v Griffiths[2009] QCA 13, cited
R v Hesketh; Ex parte Attorney-General (Qld)[2004] QCA 116, considered
R v Rabjones, Unreported, Atkinson J, SC No 276 of 2007, 2 August 2004, considered
R v Tabe[2004] QCA 17, cited

COUNSEL:

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

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.
GOTTERSON JA: On 30 January 2015, in the Supreme Court at Brisbane, the applicant, Thang Huy Nguyen, pleaded guilty to two counts of…

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 [2015] QCA 205
Case: [2015] QCA 205
Decision Date: 27 October 2015

CaseChat Overview and Summary

The case of R v Nguyen involved an appeal against the sentence imposed by the sentencing judge. The applicant, Nguyen, pleaded guilty to two counts of possession of dangerous drugs: methylamphetamine and 3,4-methylenedioxymethamphetamine. The court found him to be in possession of 13.051 grams of pure methylamphetamine and 0.441 grams of MDMA. The sentencing judge concluded that the methylamphetamine was intended for commercial use, though not definitively for sale by the applicant himself. Nguyen was sentenced to two years and six months imprisonment. The primary issue before the court was whether the sentence imposed was manifestly excessive or inadequate, considering Nguyen’s psychological vulnerability, the mental health issues of his wife, and the weight given to his prior convictions.

The court examined the grounds for interference with the sentence, focusing on the principle that the sentence should not be manifestly excessive or inadequate. The applicant argued that the sentence failed to account adequately for his psychological vulnerabilities and the mental health strain from his wife. The court considered these factors alongside the weight given to Nguyen's previous conviction for heroin trafficking at age 17. The sentencing judge had balanced these considerations against the seriousness of the offence and the need for deterrence and denunciation. The court found that the sentence imposed was within the range of sentences that a properly directed sentencing judge could have imposed, given the nature and circumstances of the offence.

In conclusion, the court ruled that the sentence was not manifestly excessive or inadequate. The application for leave to appeal against the sentence was refused. The court upheld the sentencing judge’s decision, finding that the sentence appropriately balanced all relevant considerations, including the applicant's prior offending history and the need to address the seriousness of the drug possession offence.

Orders

Orders of the court

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 [2015] QCA 205

Most Recent Citation

R v Nicholson [2016] QCA 315

Cases citing this decision · 11 of 11 shown

Re ZD (pseudonym initials)
[2024] WADC 42 Para 10

…Trudgett v Commonwealth of Australia [2006] NSWSC 575 (Bell J). [37] R v SCZ [2018] QCA 81 (Morrison & Philippides JJA; Davis J). [38] R v Nguyen [2015] QCA 205 (Fraser & Gotterson JJA; Dalton J) . [39] R v Runjanjic (1991) 56 SASR 114 (King CJ, Legoe & Bollen JJ). [40] R v Forde (1986) 19 A Crim R 1. [41] Caldwe…
Re Branch
[2024] WADC 41 Para 2

…VR 472, [26]. On the other hand, there are numerous case where diagnostic evidence from psychologists has been received: see, eg (e.g., R v Nguyen [2015] QCA 205; R v SCZ [2018] QCA 81). There is however no longer any room for debate because the Court of Appeal recently affirmed that the admissibility of such ev…
R v WBT
[2022] QCA 215 Para 14

…ases: R v Power [2013] QCA 351; R v Hawke [2021] QCA 179; R v Fahey [2019] QCA 142; R v Luong [2010] QCA 14; R v Phillips [2017] QCA 41; R v Nguyen [2015] QCA 205; R v Sabine [2019] QCA 36. Only one of those seven, R v Sabine , involved personal possession. [11][2019] QCA 36. [12]Mr Sabine was 29 years old at the…
R v Bassi
[2021] QCA 250 Para 29

…order; and DPP v Sokaluk :[29] autism spectrum disorder. [23][2006] NSWSC 575 Bell J. [24][2018] QCA 81 Morrison and Philippides JJA and Davis J. [25][2015] QCA 205 Fraser and Gotterson; Dalton J, contra . [26](1991) 56 SASR 114 King CJ, Legoe and Bollen JJ. [27](1986) 19 A Crim R 1. [28][1996] NSWCA 88. [29][201…
R v Hawke
[2021] QCA 179 Para 39

…l (Qld) ,[3] R v Nguyen [4] and R v Fahey [5] indicated a range of two-and-a-half to four years imprisonment. [3][2004] QCA 116 (“ Hesketh ”). [4][2015] QCA 205 (“ Nguyen ”). [5][2019] QCA 142 (“ Fahey ”).…
Re Dunshea
[2021] QSC 163 Para 13

…[27][2007] QCA 413 at [13]. See also: Re Tesic [2015] QCA 205 at [22]-[24].…
R v Fahey
[2019] QCA 142 Para 9

…t’s sentence is manifestly excessive. The applicant relied upon four cases: R v Hesketh; Ex parte Attorney-General (Qld) [2004] QCA 116, R v Nguyen [2015] QCA 205, R v Michalas [2007] QCA 38, and R v Summerlin [2009] QCA 297.The applicant acknowledged that there were distinguishing factors in each case but submit…
R v Sabine
[2019] QCA 36 Para 27

…t on bail, and in Nguyen there was previous trafficking offence. That is enough to show the inutility of those two decisions. [12][2004] QCA 204. [13][2015] QCA 205.…
Legal Services Commissioner v Conradie
[2018] QCAT 170 Para 29

…the effect that a psychologist (who is not a medical practitioner) does not have qualifications necessary to provide a diagnosis of depression.[2] [1][2015] QCA 205, [34]. [2][2016] QCAT 78, [55]-[56].…
R v Nicholson
[2016] QCA 315 Para 12

…The prosecutor relied on R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 and R v Nguyen [2015] QCA 205 at [27]-[30] to submit that the appropriate sentence would be at the end of the range identified in Hesketh at [17] of imprisonment between two and one-half years to four years.…
Legal Services Commissioner v Mugford
[2016] QCAT 78 Para 10

…sed. A psychologist does not have the medical expertise to make that diagnosis. The psychologist in this case is not a medical practitioner”. [11][2015] QCA 205.…

View all 11 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Gillbanks
[2015] QCA 148 Para 14

…sentence. [2]Written submissions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Beasley
[2013] QCA 322 Para 14

….[2] The parole date fixed after nine months is one month short of one-third of the sentence. [2]Written submissions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Heske…
R v Griffiths
[2009] QCA 13 Para 14

…R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Fabre
[2008] QCA 386 Para 14

…after nine months is one month short of one-third of the sentence. [2]Written submissions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Duggan
[2004] QCA 442 Para 14

…onth short of one-third of the sentence. [2]Written submissions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Hesketh; Ex parte Attorney-General
[2004] QCA 116 Para 14

…v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Tabe
[2004] QCA 17 Para 14

…missions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…

Legislation cited in this decision · 1

Drugs Misuse Act 1986 (Qld)
9(b) 2 mentions (from Para 2)

CITATION:	R v Nguyen [2015] QCA 205
PARTIES:	R v NGUYEN, Thang Huy (applicant)
FILE NO/S:	CA No 88 of 2015 SC No 543 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Unreported, 30 January 2015
DELIVERED ON:	27 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2015
JUDGES:	Fraser and Gotterson JJA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of possession of dangerous drugs, namely methylamphetamine and 3,4-methylenedioxymethamphetamine – where the applicant was sentenced to imprisonment for a period of two years and six months – where the applicant was intercepted by police and found to be in possession of 13.051 grams of pure methylamphetamine as well as 0.441 grams of MDMA – where the learned sentencing judge made a finding that the methylamphetamine was to be used for a commercial purpose although his Honour was not prepared to make a positive finding that sales were to be made by the applicant himself – where the applicant was 27 years old at the time of offending, married and had two children – where the applicant had a previous conviction for trafficking in the dangerous drug heroin at the age of 17 – where the applicant submits that the sentence is manifestly excessive in that insufficient regard was given to the applicant’s psychological vulnerability in prison and to the strain placed on the applicant by his wife’s mental illness – where allied with these factors was a further submission that too much weight was placed upon the applicant’s prior offending – whether the sentence is manifestly excessive Drugs Misuse Act 1986 (Qld), s 9(b), s 9(d) R v Bankier, Unreported, Dutney J, SC No 996 of 2007 & SC No 205 of 2008, 25 March 2008, considered R v Beasley[2013] QCA 322, cited R v Duggan[2004] QCA 442, considered R v Fabre[2008] QCA 386, cited R v Gillbanks[2015] QCA 148, cited R v Griffiths[2009] QCA 13, cited R v Hesketh; Ex parte Attorney-General (Qld)[2004] QCA 116, considered R v Rabjones, Unreported, Atkinson J, SC No 276 of 2007, 2 August 2004, considered R v Tabe[2004] QCA 17, cited
COUNSEL:	S J Keim SC for the applicant D L Meredith for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent