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Thuong Nguyen v R

Thuong Nguyen v R

Case [2012] NSWCCA 184 4 September 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thuong Nguyen v R [2012] NSWCCA 184
Hearing dates: 18 July 2012
Decision date: 04 September 2012
Before: Allsop P at [1]
Latham J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - importing marketable quantity of heroin - whether sentence manifestly excessive - prior criminal record involving trafficking in heroin - admissions of uncharged acts of the same type as the offence charged - admissions made as part of assistance to authorities - relevance to personal deterrence
Legislation Cited: Crimes Act 1900 (Cth)
Cases Cited: Angus John Lindsay v R [2012] NSWCCA 124
Dinsdale v The Queen [2000] HCA 54; (2000) 282 CLR 321
Director of Public Prosecutions v De La Rosa (2010) NSWCCA 194
House v The King (1936) 55 CLR 499
Kuti v R [2012] NSWCCA 43
Remus Ritter v R [2012] NSWCCA 121
Category: Principal judgment
Parties: Thuong Nguyen (Applicant)
Crown
Representation: Counsel:
Mr M Johnston (Applicant)
Mr C P O'Donnell (Crown)
Solicitors:
Legal Aid Commission NSW (Applicant)
Commonwealth Director of Public Prosecutions (Defendant)

File Number(s): 2010/136705
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-03-25 00:00:00

Before:

Wells DCJ

File Number(s):

2010/136705

Judgment

ALLSOP P: I agree with Davies J.

LATHAM J: I agree with Davies J.

DAVIES J: On 1 December 2010 the Applicant pleaded guilty in the Central Local Court to an offence of importing a marketable quantity of a border controlled drug being heroin. The maximum penalty for the offence is 25 years imprisonment and/or a fine of $550,000.

On 25 March 2011 Judge Wells sentenced the Applicant to a term of seven years imprisonment with a non-parole period of four years and two months.

The Applicant seeks leave to appeal against the sentence imposed on the grounds that it was manifestly excessive.

Circumstances of the offence

The Applicant, who is an Australian citizen, left Sydney for Ho Chi Minh City on 30 April 2010. He arrived back in Sydney on 30 May 2010 from Ho Chi Minh City internally concealing two large pellets and 79 smaller pellets containing heroin. The powder weighed 387.4 grams gross and contained 274.7 grams of pure heroin.

The Customs officers in Sydney were alerted on arrival to the possibility that he was carrying drugs when an ion scan wand of his luggage and his wallet returned a positive reading for the presence of heroin. He submitted to internal searching and was later admitted to St George Hospital for that purpose.

He spoke to the police in a formal interview on 1 June 2010. During the course of that interview he told the police that there had been two or three prior occasions when he had engaged in exactly the same type of behaviour. He told them that he knew that the pellets that he swallowed contained heroin. He said that he was paid about $40,000 for…

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 Thuong Nguyen v R

Details

AGLC: Thuong Nguyen v R [2012] NSWCCA 184
Case: [2012] NSWCCA 184
Decision Date: 04 September 2012

CaseChat Overview and Summary

Thuong Nguyen was convicted of importing a marketable quantity of heroin into Australia. Nguyen appealed against his sentence, claiming it was manifestly excessive. The appeal was heard by the High Court of Australia. The legal issues before the court were whether the sentence imposed was manifestly excessive and, if so, what the appropriate course of action would be. The court was also required to consider the relevance of Nguyen's admissions of uncharged acts of the same type as the offence charged, which were made as part of his assistance to the authorities.

The court found that while the sentence was severe, it was not manifestly excessive. The trial judge had considered all relevant factors, including the nature and circumstances of the offence, Nguyen's criminal history, and the need for general deterrence. The court held that the sentence reflected the seriousness of the offence and the need to protect the community. The admissions of uncharged acts were relevant to personal deterrence and were properly considered by the trial judge. The court concluded that the sentence was within the range of appropriate penalties for the offence and dismissed the appeal.

Orders