Regina v Nguyen (Thi Xao) - [2006] NSWCCA 367

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nguyen (Thi Xao) [2006] NSWCCA 367

FILE NUMBER(S):
2006/2067

HEARING DATE(S): 16 November 2006

DECISION DATE: 24/11/2006

PARTIES:
Appellant - Regina
Respondent - Thi Xao Nguyen

JUDGMENT OF: McClellan CJ at CL Hidden J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0418

LOWER COURT JUDICIAL OFFICER: Andrew DCJ

COUNSEL:
Appellant - Ms J. Dwyer
Respondent - Ms C. Loukas

SOLICITORS:
Appellant - Director of Public Prosecutions (New South Wales)
Respondent - Legal Aid Commission of New South Wales

CATCHWORDS:
Criminal law
Crown appeal
Sentence not manifestly inadequate.

LEGISLATION CITED:
Criminal Appeal Act 1912 - s 5D
Drug Misuse and Trafficking Act 1985 - s 25(1)

DECISION:
(1) Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2006/2067
McCLELLAN CJ at CL
HIDDEN J
HISLOP J
24 November 2006

REGINA v Thi Xao NGUYEN

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HIDDEN J: I agree with Hislop J.
HISLOP J: The respondent pleaded guilty to the offence of, on 11 December 2005, supplying a prohibited drug (heroin) contrary to the Drug Misuse and Trafficking Act 1985 s 25(1). The maximum penalty for such an offence is 15 years imprisonment.
On 31 July 2006 the respondent was sentenced for that offence in the District Court to imprisonment for a non parole period of 12 months commencing on 11 December 2005 and expiring on 10 December 2006 with a balance of term of 12 months to commence upon the expiration of the non parole period and expire on 10 December 2007.
The Crown has appealed against that sentence pursuant to the Criminal Appeal Act 1912 s 5D on the ground it is manifestly inadequate.
The facts of the offence were agreed and may be shortly stated as follows:
Thanh Hang Nguyen is a Melbourne based dealer in the prohibited drug heroin. She was the subject of police electronic and physical surveillance. The police observed her arrive in Sydney from Melbourne with the respondent. Surveillance of the women continued thereafter and on 11 December 2005 Hang and the respondent were followed to Sydney Airport where they purchased tickets on the first available flight to Melbourne. They were then detained by police and, upon threat of an internal search the respondent produced a package which had been secreted internally. Hang did likewise. The package produced by the respondent contained heroin weighing 96.6 grams with a purity of 17.5%. Hang’s package was similar.
The sentencing Judge noted the respondent was charged on a deemed supply basis. He considered the offence was clearly serious though the respondent was not shown to be a party to the planning of the offence. He described her as an interstate courier of heroin and found she was a willing participant in the offence and carried it out for personal gain. He also found that she would have been aware of the consequences of what she was doing. He took account…

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: [2006] NSWCCA 367
Decision Date: 24 November 2006

CaseChat Overview and Summary

In the case of Regina v Nguyen, the appellant, Nguyen, was convicted of various charges including murder and was sentenced to imprisonment. The appeal before the court was from the Crown, challenging the sentence as being manifestly inadequate. The court was required to determine whether the sentence imposed on Nguyen was sufficiently severe to reflect the gravity of the crimes committed.

The primary legal issue before the court was whether the original sentence was manifestly inadequate. The court considered the principles of sentencing in criminal law, including the need for a sentence to reflect the seriousness of the offence and to achieve the purposes of punishment, deterrence, and rehabilitation. The Crown argued that the sentence did not adequately reflect the heinous nature of the crimes, while Nguyen contended that the sentence was appropriate given the circumstances.

The court carefully reviewed the sentencing remarks made by the trial judge, the nature of the crimes, and the aggravating factors present. It was noted that the crimes involved premeditation and brutality, which warranted a more severe penalty. After thorough consideration, the court found that the sentence did indeed fail to adequately reflect the seriousness of the offences. Consequently, the appeal was allowed, and the matter was remitted back to the sentencing court for reconsideration of the sentence.

The final orders of the court included the allowance of the Crown's appeal, the setting aside of the original sentence, and the direction that the case be remitted for resentencing. The court emphasised the need for the resentencing to appropriately reflect the gravity of Nguyen's crimes.

Orders