Regina v Heip Tan Nguyen - [2004] NSWCCA 438

CITATION: Regina v Heip Tan NGUYEN [2004] NSWCCA 438

HEARING DATE(S): 30/11/04

JUDGMENT DATE:
30 November 2004

JUDGMENT OF: James J at 32; Hidden J at 31; Bell J at 2

DECISION: Application granted; Appeal dismissed.

LEGISLATION CITED: Crimes Act 1901
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Drug Misuse and Trafficking Act 1985

CASES CITED: R v Johnstone [2004] NSWCCA 307
R v Markarian [2003] NSWCCA 8
R v Shankley [2003] NSWCCA 253
R v Stafrace [1997] 96 A Crim R
R v Tipler [2000] NSWCCA 382

PARTIES :
Regina
Heip Tan NGUYEN (Applicant)

FILE NUMBER(S): CCA 2004/2429

COUNSEL: DML Woodburne (Crown)
P Doyle (Applicant)

SOLICITORS: S Kavanagh
SE O'Connor (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3365

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

2004/2429

JAMES J
HIDDEN J
BELL J
Tuesday 30 November 2004

REGINA v HIEP TAN NGUYEN

Judgment

1 JAMES J: The court is in a position to give a decision and I will call upon Justice Bell to give the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Sorby (the Judge) in the Campbelltown District Court on 9 March 2004. The applicant pleaded guilty to three counts charging him with the supply of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act). Two offences occurred on 27 May 2002 and the third offence was committed a little over one year later on 30 May 2003.

3 The facts relating to the two offences committed on 27 May 2002 were the subject of an agreed statement. The applicant supplied a $50 deal of heroin to a person in the vicinity of the Bonnyrigg Shopping Plaza. It would appear that the purchaser made contact with the applicant by telephone shortly before the transaction was effected. The sale was observed by police officers, who immediately arrested the applicant. He was asked if he had any more drugs in his vehicle and he replied: “Yes, in the door”. The police found thirty-one foil packages containing white powder and a rock wrapped in a plastic bag. These were later analysed and found to contain heroin. The applicant admitted that the drugs belonged to him. The thirty-one foils in combination weighed 4.9 grams and the heroin in rock form weighed 3.4 grams. It was analysed and found to be 40.5 per cent pure heroin. The foil packages were not tested for purity. A sum of $2070 in cash was located on the applicant at the time of his arrest.

4 The applicant was charged with a number of offences and released on bail when he appeared before the Liverpool Local Court the following day. There were a number of conditions attaching to his bail. These included a requirement that he reside at premises in Edensor Park and that he not leave those premises other than between the…

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.

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Details

Case: [2004] NSWCCA 438
Decision Date: 30 November 2004

CaseChat Overview and Summary

The case of Regina v Heip Tan Nguyen [2004] NSWCCA 438 involved an application for leave to appeal against the severity of sentences imposed by Judge Sorby in the Campbelltown District Court. The applicant, Heip Tan Nguyen, pleaded guilty to three counts of supplying a prohibited drug, heroin, in May 2002 and May 2003. The appeal grounds challenged the severity of the sentences, the judge's finding that the applicant showed no remorse, and the discount for his pleas of guilty. The court considered whether the sentences were manifestly excessive, the applicant's remorse, and the appropriate discount for his guilty pleas. The applicant argued that the sentences were excessive, particularly as he was a first-time offender supplying drugs to feed his addiction. The court noted that the maximum penalty for these offences is fifteen years' imprisonment and that the sentences were structured to reflect the gravity of the circumstances, general deterrence, and personal deterrence. The court found that the challenge to the severity of the sentences was not made out, and the discount for the pleas of guilty was within the judge's discretion. Consequently, the application for leave to appeal was granted, but the appeal was dismissed.

The legal issues in this case centred on the severity of the sentences imposed by the District Court, the assessment of the applicant's remorse, and the appropriate discount for his pleas of guilty. The court's reasoning focused on whether the sentences were manifestly excessive, whether the applicant demonstrated remorse, and the appropriateness of the discount for his guilty pleas. The court found that the sentences were not manifestly excessive, and the judge's finding that the applicant showed no remorse was not erroneous. The discount for the pleas of guilty was within the judge's discretion. The court concluded that the application for leave to appeal should be granted, but the appeal itself should be dismissed.

Orders