AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 6 October 2023

Nguyen v R

[2023] NSWCCA 240

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE RECKLESSLY DEALING IN PROCEEDS OF CRIME WHERE CO NO JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Nguyen v R [2023] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Adamson JA, Price J, Davies J (Davies J delivering the principal judgment)

Background

The appellant pleaded guilty to one count of recklessly dealing in the proceeds of crime, contrary to s 400.3(2A)(d) of the Criminal Code (Cth). On 25 August 2021, he and a co-offender moved over $2.2 million in cash, bundled into zip-lock bags and packed into boxes, from one Liverpool apartment to another. Police apprehended both men as they drove out of the carpark. The cash was later found in the appellant's bedroom, including $736,090 locked in a safe in his wardrobe. Keys to the safe were found in his pockets.

The appellant was sentenced in the District Court to 2 years and 6 months' imprisonment, to be released after 1 year and 3 months on a recognisance (a formal undertaking to be of good behaviour) for 3 years. His co-offender, who faced two additional drug trafficking charges involving large quantities of methylamphetamine, received an aggregate sentence of 4 years and 6 months with a non-parole period of 2 years and 3 months. The indicative sentence for the shared proceeds-of-crime offence was 18 months' imprisonment.

The appellant sought leave to appeal on three grounds: that the sentencing judge wrongly relied on his prior attendance at the George Street premises to assess the gravity of the offence; that his sentence was disproportionate compared with his co-offender's (a "parity" argument); and that the sentencing judge had erroneously amended the sentencing order by varying the good behaviour period.

  • Whether the sentencing judge erred in considering the appellant's six prior visits to the George Street premises when assessing the objective seriousness of the offence, given that the charged conduct related only to one day's activity.
  • Whether the disparity between the appellant's sentence and his co-offender's indicative sentence for the same offence gave rise to a justifiable sense of grievance.
  • Whether the Court of Criminal Appeal had power to correct a clerical error made in the District Court's sentencing order.

Decision

Ground 1: Prior attendance at the premises. The sentencing judge expressly stated he would not treat the prior visits as an aggravating feature of the offence itself. Instead, he used that information to reject the appellant's submission that he had been unaware of the contents of the boxes until moments before his arrest, and that his involvement was a one-off favour. The Court of Criminal Appeal found this reasoning was open on the evidence. Fact-finding and the drawing of inferences from facts, as well as the overall assessment of objective seriousness, fall within the province of the sentencing judge. The presence of a locked safe in the appellant's own wardrobe, and his possession of the keys, provided additional support for the inference drawn.

Ground 2: Parity. The parity principle holds that, where co-offenders are sentenced for the same offence, unjustifiable disparity can give an offender a legitimate grievance warranting appellate intervention. Here, the same judge sentenced both offenders and gave explicit reasons for why the co-offender received a more lenient indicative sentence for the shared offence: the co-offender demonstrated genuine remorse, had stronger rehabilitation prospects, and had served time in custody under the more onerous conditions of the COVID-19 pandemic. The Court also noted that the roles of the two men differed, with the appellant found to be more criminally involved. The Court was not persuaded the difference in sentences was "gross, marked or glaring," and no justifiable sense of grievance was established.

Ground 3: Correction of the clerical error. The sentencing judge had originally imposed a recognisance period of 1 year and 3 months, but a registry error recorded it as 3 years. When the judge later amended the order under s 19AHA of the Crimes Act 1914 (Cth) to correct an unrelated pre-sentence custody issue, the erroneous 3-year period was inadvertently carried forward. The Court of Criminal Appeal held it had no power to fix this error. Section 19AHA empowers the court that made the error to correct it; it does not extend to another court. Rule 5.4 of the Supreme Court (Criminal Appeal Rules) 2021 (NSW) preserves the inherent jurisdiction to correct accidental errors, but only errors made by the Court of Criminal Appeal itself. The ground was dismissed as misconceived, with the Court directing that any correction must be sought in the District Court.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge may draw on contextual facts (such as an offender's prior attendance at relevant premises) when assessing overall criminality, provided those facts are not treated as aggravating the offence itself beyond what the evidence supports.
  • Where a sentencing judge expressly addresses parity and gives reasoned justification for differences in sentence (such as differing roles, remorse, rehabilitation prospects, and custody conditions), an appellate court will not intervene unless the disparity is gross, marked, or glaring.
  • In dismissing the parity ground, the Court confirmed that co-offenders facing different charges and possessing different subjective circumstances will not automatically attract equivalent sentences for their common offence.
  • Under s 19AHA of the Crimes Act 1914 (Cth), only the court that made a clerical error has power to correct it. The Court of Criminal Appeal cannot exercise that corrective power in respect of an error originating in the District Court.
  • Rule 5.4 of the Supreme Court (Criminal Appeal Rules) 2021 (NSW) is limited to correcting accidental errors made by the Court of Criminal Appeal itself and does not provide a pathway to correct errors from courts below.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 400.3(2A), 400.6
- Crimes Act 1914 (Cth), ss 16BA, 19AHA
- Criminal Appeal Act 1912 (NSW), s 6
- Supreme Court (Criminal Appeal Rules) 2021 (NSW), r 5.4

Cases
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Mulato v Regina [2006] NSWCCA 282
- Regina v Rick Barry Swan [2006] NSWCCA 47
- R v Clarke [2013] NSWCCA 260
- England v R; Phanith v R [2009] NSWCCA 274
- Smith (a pseudonym) v R [2022] NSWCCA 123
- R v Perry; R v Perry [2022] SASCA 51
- R v O'Donoghue (1988) 34 A Crim R 397