Regina v Ly & Nguyen - [2005] NSWCCA 57

CITATION:
Regina v LY & NGUYEN [2005] NSWCCA 57

HEARING DATE(S): 21/02/05

JUDGMENT DATE:

21 February 2005

JUDGMENT OF:
Grove J at 28; James J at 2; Barr J at 27

DECISION:
Leave to appeal against sentence granted. Each appeal is dismissed

CATCHWORDS:
CRIMINAL LAW - sentencing - supply of a prohibited drug - heroin - co-offenders - whether sentencing judge failed properly to apply principles of parity between co-offenders - whether sentencing judge erred by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed - co-offender sentenced for unrelated offences, had a criminal history, drug addiction - whereas applicants had no criminal history, no addiction

CASES CITED:
The Queen v Henry (1999) 46 NSWLR 346

PARTIES:
Regina v Khanh LY & Chin Thi Nguyen

FILE NUMBER(S):
CCA 2004/2871 & 2004/3045

COUNSEL:
J Bennett SC - Respondent
A Cook - Applicant - Nguyen
PJ McGrath - Applicant - Ly

SOLICITORS:
S Kavanagh - Respondent
M Sten - Applicants

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0171

LOWER COURT JUDICIAL OFFICER:
Morgan DCJ

2871/2004

GROVE J
JAMES J
BARR J
MONDAY 21 FEBRUARY 2005

REGINA v CHIN THI NGUYEN

REGINA KHANH LY

Judgment

1 GROVE J: Mr Justice James will deliver the first judgment.

2 JAMES J: Khanh Ly and Chin Thi Nguyen, his former wife, applied for leave to appeal against sentences imposed on them in the District Court by her Honour Judge Morgan on 7 May 2004. The two applications for leave to appeal were, by consent, heard together.

3 In a trial before Judge Morgan and a jury each of the applicants had been found guilty on a charge of supplying a prohibited drug, heroin, on 3 May 2002. Each of the applicants was sentenced by Judge Morgan to a term of imprisonment of five years, with a non-parole period of three years six months commencing on 5 March 2004, the date on which the jury had returned its verdicts of guilty against the applicants. The maximum penalty for the offence of supplying a prohibited drug is imprisonment for 15 years and/or a fine of 2000 penalty units.

4 In addition to sentencing the applicant Nguyen for the offence of supplying a prohibited drug, Judge Morgan also sentenced Nguyen for two other offences to which she had pleaded guilty, a charge of receiving a camera and a charge of goods in custody, the goods being four cameras. For the offence of goods in custody Judge Morgan sentenced Nguyen to a term of imprisonment of three months to date from 5 March 2004; for the offence of receiving Judge Morgan sentenced Nguyen to a term of imprisonment of nine months also to date from 5 March 2004.

5 The two applicants had been co-offenders in the offence of supplying a prohibited drug on 3 May 2002. Another co-offender in that offence was a man named Con…

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 Regina v Ly & Nguyen

Details

AGLC: Regina v Ly and Nguyen [2005] NSWCCA 57
Case: [2005] NSWCCA 57
Decision Date: 21 February 2005

CaseChat Overview and Summary

In Regina v Ly & Nguyen, the applicants, Ly and Nguyen, appealed against their sentences for supplying a prohibited drug, heroin. The case was heard by the Court of Appeal in New South Wales. Ly and Nguyen were co-offenders, and they argued that the sentencing judge had not properly applied the principles of parity between co-offenders. They also contended that the judge had erred by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed for them.

The legal issues before the court were whether the sentencing judge failed to properly apply the principles of parity between co-offenders and whether the sentencing judge erred by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed for the applicants. The court considered the relevant principles of sentencing and the circumstances of each offender, including the nature and extent of their involvement in the offence, their criminal history, and any mitigating or aggravating factors.

The Court of Appeal found that the sentencing judge had not properly applied the principles of parity between co-offenders. The court noted that the co-offender had a criminal history, a drug addiction, and had been sentenced for unrelated offences, whereas the applicants had no criminal history or drug addiction. The court held that the sentencing judge had erred by finding that the notional sentence to be imposed on the co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed for the applicants. The court allowed the appeals and remitted the matter to the sentencing judge for re-sentencing.

The final orders of the court were that the appeals be allowed, the convictions be upheld, and the sentences be quashed and the matters be remitted to the sentencing judge for re-sentencing. The court emphasised the importance of properly applying the principles of parity between co-offenders in sentencing and the need for sentencing judges to consider the individual circumstances of each offender.

Orders