Nguyen v R [2019] NSWCCA 131

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nguyen v R [2019] NSWCCA 131 Hearing dates: 3 June 2019 Decision date: 21 June 2019 Before: Basten JA at [1]; Hamill J at [2]; Lonergan J at [32] Decision: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months commencing on 8 September 2016 and expiring on 7 November 2019. The total sentence (and balance of term) will expire on 7 September 2021. (4) The applicant will be eligible for release to parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted

CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53, 53A, 54B and 54D Drug Misuse and Trafficking Act 1985 (NSW), s 33(2)(b) Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 PG v R [2017] NSWCCA 179 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294 R v Cardoso [2003] NSWCCA 15 Category: Principal judgment Parties: Ngoc Canh Nguyen (Applicant) Regina (Respondent) Representation: Counsel: R Steward (Applicant) J Roy (Respondent)