R v Nguyen - [1999] QCA 258

99.258

COURT OF APPEAL
McMURDO P
McPHERSON JA

THOMAS JA

CA No 151 of 1999
THE QUEEN
v.

TAM MINH NGUYEN

Applicant

BRISBANE
..DATE 09/07/99
090799 T32/JAP22 M/T COA 151/99
THE PRESIDENT: The applicant was convicted in the
Supreme Court of Brisbane on 10 March 1999 of one count
of trafficking in heroin. He was sentenced to thirteen
years' imprisonment. He claims that the sentence was
manifestly excessive and that the Judge should have
considered the effect of Part 9A of the Penalties and
Sentences Act 1992 in determining an appropriate
penalty.

The applicant was a wholesale supplier for personal gain of substantial quantities of high grade heroin. The heroin was supplied to the applicant from Sydney by a person named Phuong. The applicant's activities were revealed as a result of an NCA operation using a covert police operative posing as a buyer.

The first buy occurred on 10 September 1997 and was $6,000 for 26.16 grams of powder containing 9.7 grams of pure heroin with a purity of 37.3 per cent. On this occasion the applicant did not deal directly with the undercover police officer but with others lower down the chain.

These dealings continued through early and mid October
and on 12 November 1997 the undercover police officer
dealt directly with the applicant purchasing 27.5 grams
of white powder containing 18.8 grams of pure heroin
with a 68.7 per cent purity for $8,500.
090799 T32/JAP22 M/T COA 151/99
They discussed the supply of 3 pounds of heroin for
$285,000 and the applicant finally offered to supply one
pound of heroin before Christmas guaranteeing the other
two pounds after Christmas. On 18 December the
undercover police officer told the applicant she had
borrowed $300,000 to buy all three pounds at once. It
was agreed that on 23 December 1997 the undercover
police officer would give the applicant $95,000 to show
to his boss in exchange for one pound of heroin and that
the remaining $190,000 would then be handed over for the
further 2 pounds of heroin.

On that date the applicant, Phuong, Luat and another co-offender Nguyen were all arrested at a Surfers Paradise hotel shortly before the planned sale. A total of 767.82 grams of white powder containing 591.68 grams of pure heroin with a percentage purity at 67.5 per cent was located in the brief cases carried by Phuong and the other co-offender Nguyen.

The total amount of white powder involved in the trafficking was 957.08 grams of white powder containing 700.264 grams of pure heroin which included 25.3 grams of white powder found at the applicant's home, together with $13,700 in cash.

The applicant was a user of marijuana and heroin but
claimed not to be an addict. He commenced trading in
heroin in return for a cut of heroin together with some
090799 T32/JAP22 M/T COA 151/99
cash for each supply. He used his cut of heroin either
for his own use or to sell to others for profit.

The system adopted was commonly…

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 [1999] QCA 258
Case: [1999] QCA 258
Decision Date: 9/07/1999

CaseChat Overview and Summary

In this case, the applicant, Tam Minh Nguyen, was convicted of trafficking in heroin and sentenced to thirteen years' imprisonment. The applicant appealed against the sentence on the grounds that it was manifestly excessive and that the sentencing judge should have considered the effect of Part 9A of the Penalties and Sentences Act 1992 in determining an appropriate penalty. The primary issue for the court to decide was whether the sentence imposed by the trial judge was manifestly excessive and if the provisions of Part 9A of the Penalties and Sentences Act 1992 should have been taken into account.

The court held that the sentence of thirteen years was not manifestly excessive, but there were two errors in the trial judge's formulation of the sentence. One error was in the applicant's favour, while the other was against him. The court decided to make a slight adjustment to the sentence to account for these errors. The court found that a starting point of 16 years was appropriate for heroin trafficking of these dimensions, even for a relatively young offender with a slight to moderate criminal history. A proper sentence would result if there is allowed a 16-month reduction for pre-sentence custody, and a further two-year reduction for the applicant's plea of guilty.

The court concluded that once the position was reached, the provisions of Part 9A of the Penalties and Sentences Act apply, and they could not fashion a sentence to avoid the operation of those provisions. The court allowed the application for leave to appeal against the sentence and, in lieu of the period of imprisonment of 13 years, substituted a term of imprisonment of 12 years and 8 months and confirmed the sentence imposed below. The order of the Court would speak from the date of the sentence.

Orders