Legal Research
Cases
R v Nguyen; R v Pham

R v Nguyen; R v Pham

Link copied

Case Copied 22 October 2010 72 min read

Contents

On this page

Reported Decision: 205 A Crim R 106

New South Wales

Court of Criminal Appeal

CITATION: R v Nguyen; R v Pham [2010] NSWCCA 238

HEARING DATE(S): 13 May 2010; final written submissions - 5 October 2010

JUDGMENT DATE:
22 October 2010

JUDGMENT OF: Macfarlan JA at 1; Johnson J at 2; RA Hulme J at 137

DECISION: Hai Van Nguyen: (a) Crown appeal allowed; (b) sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 6 November 2009 set aside; (c) in their place:
(i) for the offence of importing a commercial quantity of a border controlled drug, cocaine, taking into account the offences on the schedule under s.16BA Crimes Act 1914 (Cth), Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2008 and expiring on 18 May 2024;
(ii) for the offence of importing a commercial quantity of a border controlled drug, methamphetamine, Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2010 and expiring on 18 May 2026;
A non-parole period is fixed of 12 years commencing on 19 May 2008 and expiring on 18 May 2020.
Phuong Thu Thi Pham: (a) Crown appeal allowed; (b) sentence imposed by his Honour Judge Berman SC in the Sydney District Court on 10 December 2009 set aside; (c) in its place, taking into account the offence on the schedule under s.16BA Crimes Act 1914 (Cth), Ms Pham is sentenced to imprisonment for a term of 15 years commencing on 19 May 2008 and expiring on 18 May 2023, with a non-parole period of 10 years commencing on 19 May 2008 and expiring on 18 May 2018.

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeals - one offender pleads guilty to importing commercial quantities of cocaine and methamphetamine - second offender pleads guilty to attempted possession of commercial quantity of unlawfully imported cocaine with a similar offence concerning methamphetamine to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - claim by Crown that sentences manifestly inadequate - assessment of roles of offenders - assessment of objective gravity of offences - held that sentences manifestly inadequate - no discretionary reasons why Court should not intervene - offenders resentenced

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001
Judiciary Act 1903 (Cth)
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Jimmy v R [2010] NSWCCA 60; 240 FLR 27
R v Pham [2009] NSWDC 362
Everett v The Queen [1994] HCA 49; 181 CLR 295
R v Wall [2002] NSWCCA 42; 71 NSWLR 692
R v Lee [2007] NSWCCA 234
House v The King [1936] HCA 40; 55 CLR 499
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
R v Wong and Leung [1999] NSWCCA 420; 48…

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.

Keep reading for free

Create a free CaseChat account to read R v Nguyen; R v Pham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWCCA 238
Decision Date: 22 October 2010

CaseChat Overview and Summary

The appeal before the Court of Appeal involved two respondents, Nguyen and Pham, both charged with drug importation and possession offences. Nguyen pleaded guilty to importing commercial quantities of cocaine and methamphetamine, while Pham pleaded guilty to attempted possession of commercial quantities of unlawfully imported cocaine, with a similar offence concerning methamphetamine to be taken into account. The Crown appealed the sentences handed down, claiming they were manifestly inadequate. The High Court of Australia was tasked with determining whether the sentences were indeed inadequate and whether there were any discretionary reasons to not intervene and resentence the offenders.

The central legal issues the Court needed to resolve were whether the original sentences were manifestly inadequate and if there were sufficient discretionary reasons to not intervene. The Court was required to assess the roles of both offenders in the criminal activity, the objective gravity of the offences, and the appropriateness of the original sentences. The Court needed to consider the principles of sentencing, the nature and circumstances of the offences, and the role of each offender in the criminal activity to determine if the sentences were manifestly inadequate and if there were any reasons not to intervene.

In delivering its judgment, the Court found that the original sentences were manifestly inadequate. The Court conducted a detailed analysis of the roles of both offenders and the objective gravity of their offences. The Court concluded that the sentences did not reflect the seriousness of the crimes and that there were no discretionary reasons to not intervene and resentence the offenders. The Court took into account the substantial quantities of drugs involved, the planning and organisation required for the importation, and the potential harm to the community. The Court emphasised the need for sentences to reflect the seriousness of the offences and to deter future criminal activity.

Following its findings, the Court resentenced both offenders. The new sentences reflected the objective gravity of the offences and the roles of the offenders in the criminal activity. The Court's decision highlighted the importance of ensuring that sentences appropriately reflect the seriousness of drug importation and possession offences and serve to deter future criminal activity. The Court's re-sentencing underscored the need for sentencing to be proportionate and to adequately address the harm caused by such offences.

Orders