Nguyen v R [2016] NSWCCA 5

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nguyen v R [2016] NSWCCA 5 Hearing dates: 2 November 2015 Date of orders: 10 February 2016 Decision date: 10 February 2016 Before: Gleeson JA at [1] Rothman J at [2] Bellew J at [3] Decision: 1. Leave to appeal granted.

2. Appeal dismissed Catchwords: CRIMINAL LAW – Sentence – Character – Where offender had no prior convictions – Where offender gave evidence on sentence which was not accepted by the sentencing judge – Whether sentencing judge erred in finding that the offender was not of good character

CRIMINAL LAW – Sentence – Where offender charged with importing tier 1 goods being reckless as to the fact that they were tier 1 goods – Where recklessness was defined by the Criminal Code 1995 (Cth) – Where Code provided that recklessness could be also established by evidence of intention or knowledge – Where jury directed in accordance with the definition of recklessness – Where no direction sought or given as to recklessness constituted by knowledge – Where jury convicted the offender – Where sentencing judge found on sentence that the case was not one of recklessness but one where the offender knew that the goods were prohibited – Whether finding of the sentencing judge was inconsistent with the verdict of the jury

CRIMINAL LAW – Offences – Sentence - Importation of pseudoephedrine – Where quantity substantial – Where the applicant had packed her bags herself and was thus aware of the quantity – Need for the sentence to reflect general deterrence Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Customs Act 1901 (Cth) Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Briouzguine v R [2014] NSWCCA 264 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DPP (Cth) v El Kaharni (1990) 21 NSWLR 370 Garcia v R [2013] NSWCCA 241 Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 R v Issacs (1997) 41 NSWLR 374 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 R v Zerafa [2013] NSWCCA 222 The Queen v Pham [2015] HCA 39 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Kim Giau Nguyen (Applicant) Regina (Respondent) Representation: Counsel: M C Ramage QC (Applicant) L Fernandez (Respondent)