Regina v LY & NGUYEN [2005] NSWCCA 57

New South Wales Court of Criminal Appeal

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

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

S Kavanagh - Respondent SOLICITORS: M Sten - Applicants

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

IN THE COURT OF CRIMINAL APPEAL 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 Van Huynh, who had pleaded guilty to a charge of supplying a prohibited drug on 3 May 2002 and who had been sentenced on 12 December 2002 by another District Court Judge, Judge Urquhart. 6 In sentencing the two applicants Judge Morgan delivered a single set of remarks on sentence. In her remarks on sentence her Honour stated the facts of the offences by summarising some of the evidence given at the trial, which her Honour clearly accepted for the purpose of sentencing the applicants. On these applications no complaint has been made by either applicant about this part of her Honour's remarks on sentence. Her Honour said: "The evidence before the jury was that as a result of information received police obtained approval to conduct a controlled operation, that is to use an informant or undercover police officer to buy prohibited drugs. A registered informant (Steve) gave evidence that on or about 2 May 2002 he telephoned the offender Ly, a person he called 'father', and made inquiries about the purchase of an ounce of heroin and the cost of it. He was told it would cost $9000. In evidence Steve said that as at 2 May 2002 he was a heroin addict and had been for some time.