R v Nguyen No. Sccrm-98-29 Judgment No. S6721

[1998] SASC 6721

R  v NGUYEN

Court of Criminal Appeal Doyle CJ, Williams and Bleby JJ

DOYLE CJ

This is an application for leave to appeal against sentence.

Mr Nguyen pleaded guilty to selling heroin, possession  of heroin for sale and to the unlawful possession of money.

Leave to appeal against sentence was refused by Prior J.

By application dated 14 April 1998, Mr Nguyen applied to have determined by the Full Court his application for leave to appeal against sentence.

The application was considered in private pursuant to Rule 15(7) of the Supreme Court Criminal Appeal Rules.

The application was considered by a court comprising me, Williams and Bleby JJ.

We are unanimously of the opinion that leave to appeal should be refused.

In this case, the mitigating circumstances are quite powerful.  The amount of heroin involved was quite small, but the two heroin offences are very serious offences.  While in the exceptional circumstances, the sentence could be regarded as a little heavy, we do not consider that there is any realistic possibility of a court concluding that a single sentence of 3 years imprisonment for the two heroin offences is manifestly excessive.

There seems to have been some confusion about the origin of the money in question.  The submission to the sentencing judge appears to have been that the money was not drug money.  However, the applicant admitted that he was unlawfully in possession of the money.  On looking at the judge's sentencing remarks, it is not clear to us that the origin of the money was of any particular significance.  The sentence for unlawful possession is rather heavy, but once again it could not be said that it is manifestly excessive.  We are not satisfied that the origin of the money had anything to do with the sentence, imposed in any event.

In our opinion, there is no substance in the submission that the sentence for unlawful possession should not have been cumulative.  It was clearly a separate offence.  Indeed, to argue that it should be made concurrent would be to suggest a link between the heroin offences and the money.

We cannot see any indication in the sentencing remarks that the judge failed to realise he had a discretion to suspend the sentence, or that he had to consider the exercise of the discretion.  We consider that the judge was saying no more than that it was difficult to suspend a sentence for such a serious offence.  In particular, he said “I have anguished over the matter”.

Accordingly, it appears that the appeal has no reasonable prospect of success.  Nor does it raise any issue of principle.

The order of the court is that leave to appeal against sentence be refused.