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Nguyen v R [2023] NSWCCA 240

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of recklessly dealing in proceeds of crime contrary to s 400.3(2A)(d) of the Commonwealth Criminal Code. Original sentence imposed 2 years and 6 months of imprisonment, with offender to be released on recognizance after 1 year and 3 months. Offender appealed on the grounds that the sentencing judge erred in assessing the objective gravity of the offence, that offender has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Giang, and that the sentencing judge erred in varying the sentence imposed upon offender pursuant to s 19AHA of the Crimes Act 1914.

Nature and Circumstances: Offender submitted that the sentencing judge erred in concluding that the offending “was not something just done to assist someone at the last minute” by erroneously relying upon the applicant’s attendance at the George Street premises on occasions prior to the date of the offence. It was entirely within the role of the sentencing judge to draw inferences from the facts, subject only to the requirement to be satisfied of matters adverse to offender beyond reasonable doubt, and matters in their favour on the balance of probabilities. Sentencing judge did not err in the conclusion they reached that the offending was not something done to assist someone at the last minute. Ground 1 rejected.

Parity: In circumstances where the same judge sentenced both offenders, where the judge gave express consideration to the issue of parity, where the sentence for the co-offender was very lenient but the sentencing judge provided some reasons for that leniency, offender does not have a justifiable sense of grievance. The difference between the two sentences cannot be described as gross, marked, or glaring. The statement by the sentencing judge that parity was limited was nothing other than a statement of the obvious in the circumstances. Their Honour was not saying that they would not give appropriate consideration to the issue of parity, only that the differences between the co-offenders meant that the sentence given to one offender was not likely to bear much relationship to the sentence given to the other offender. Ground 2 rejected.

Rectification of Error Under s 19AHA: Offender spent 13 days in custody before being released to bail. Sentencing judge only credited offender for 3 days of pre-sentence custody in original sentence. Both parties consented for this error to be corrected. They sent a letter to the sentencing judge requesting for this to be done, also directing that offender be released after 1 year and 3 months on recognisance “to be of good behaviour for a period of three years”. Reference to the 3 year good behaviour period was an error. The sentencing judge varied the sentencing order they had made in accordance with the letter. Neither party picked up the error in relation to the 3 year period. The applicant submitted that what the sentencing judge did on 15 February 2023 was to increase the severity of the sentence in reliance on s 19AHA of the Crimes Act. That is not what occurred. The sentencing judge was correcting, pursuant to s 19AHA(3), the error they had made in relation to pre-sentence custody by varying the commencement date for the sentence. What then occurred was a further error by the sentencing judge (without fault on their part) in providing for a recognizance release order for 3 years. The error made by the sentencing judge is amenable to correction under s 19AHA(3). The Court of Criminal Appeal does not have power under that section to correct an error made by another court. Ground rejected.

Leave to appeal granted. Appeal dismissed.

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