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Nguyen v The Queen [2020] NSWCCA 45

appeal against sentence — importing a border controlled precursor offence contrary to s 307.11(1) of the Commonwealth Criminal Code — offence relates to 3.996595kg of pseudoephedrine — original sentence imposed 7 years’ imprisonment with a 3 year and 6 month non-parole period — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge mistook facts by finding offender imported 7.8kg of border controlled precursor pseudoephedrine when it was an agreed fact that offender imported 3.996595kg — this finding was plainly wrong and not open to sentencing judge on the evidence — this erroneous finding, being nearly twice amount imported, must have had impact on sentencing judge’s assessment of objective seriousness of offence but also manner sentencing judge drew guidance from comparable cases — re-sentence — mental condition — s 16A(2)(m) — reduced moral culpability must be taken into account in assessing objective seriousness due to offender’s intellectual disability and it must have significant bearing upon question of appropriate sentence — general deterrence — s 16(2)(ja) — primacy of general deterrence and denunciation in drug importation offending have more marginal significance to determining appropriate term of imprisonment for offenders like offender — offender not appropriate vehicle for full force of general deterrence so need for salutary custodial sentence reduces — contrition — s 16A(2)(f) — position on contrition and remorse complicated by demonstrated lack of intellectual ability and apparent communication difficulties offender has both in English and native Vietnamese — offender’s statements that they regret trusting the people who got them involved and that they had been extremely distressed when discussing offence and court case demonstrate contrition or remorse in an unsophisticated way — antecedents — s 16A(2)(m) — previous offending of very similar nature in 2007 for which offender sentenced to 6 years’ imprisonment with 3 year non-parole period — given release in 2010, almost 6 year hiatus before offender engaged in subject offending — offender did not plan travel to Vietnam with view to partaking in this criminal activity, but rather was cajoled or encouraged to do so once there — offender’s antecedents and character of necessity relevantly include their intellectual deficits — hardship to the offender — clearly has been and will continue to be hardship suffered by offender and their daughter and these are matters to be considered in overall subjective case — offender’s daughter has serious liver condition that has seen her hospitalised on occasions — rehabilitation — s 16A(2)(n) — sentencing judge’s observation, given offender’s prior conviction, that offender’s prospects of rehabilitation cannot be assessed as good is reasonable conclusion — clear offender needs substantial support and direction in community — this has been proven again by subject offending and so lengthy period of supervision in community upon release is essential — appeal judge noted the unusual circumstances of this offender — offender re-sentenced to 6 years’ imprisonment with 3 year non-parole period    
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