Bao Nguyen v Regina [2005] NSWCCA 448

Bao Nguyen v Regina [2005] NSWCCA 448

The applicant's sentence was disproportionally higher than those of co-offenders convicted of the same crime in similar circumstances. While the trial judge acted within discretion, the error of subsequent judges in failing to have due regard to that benchmark resulted in sentences for co-offenders that, while lenient, were not so inadequate as to be disregarded. This disparity gives the applicant a legitimate sense of grievance, warranting appellate intervention and reduction of sentence.

Parties
Applicant: Bao Nguyen; Respondent: Regina
Jurisdiction
Australia
Judgment Date
08 February 2006
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; sentence quashed and new sentence imposed.
Legal Topics
Sentencing, Parity of Sentence, Drug Offences, Cultivation of Prohibited Plants
Criminal Law Sentencing Parity of Sentence Drug Offences Cultivation of Prohibited Plants

Case Brief

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Parties

Bao Nguyen

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether the applicant is entitled to a reduction in sentence due to disparity with co-offenders' sentences
  2. 2 Whether the parity principle requires adjustment of applicant's sentence
  3. 3 Whether the sentences of co-offenders were so lenient as to invalidate the applicant's sense of grievance

Ratio Decidendi

The applicant's sentence was disproportionally higher than those of co-offenders convicted of the same crime in similar circumstances. While the trial judge acted within discretion, the error of subsequent judges in failing to have due regard to that benchmark resulted in sentences for co-offenders that, while lenient, were not so inadequate as to be disregarded. This disparity gives the applicant a legitimate sense of grievance, warranting appellate intervention and reduction of sentence.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed and new sentence imposed.

Orders

  • Grant leave to appeal and allow the appeal.
  • Quash the sentence appealed from and substitute a sentence comprising a non-parole period of three years, commencing on 29 January 2004 and expiring on 28 January 2007 and a balance of sentence of two years and six months expiring on 28 July 2009.