Nguyen, Kathy v R [2015] NSWCCA 209

Nguyen, Kathy v R [2015] NSWCCA 209

No error was shown in the sentencing judge's assessment of the starting points because the comparison with Tran was not straightforward: Tran was sentenced for additional firearm offences and had some related offences on a Form 1, while aspects of the applicant's subjective case were rejected. However, there was no identifiable basis or stated reason for giving the applicant a 12.5% guilty plea discount when Tran received 17.5%, and the procedural histories did not justify a more favourable discount for Tran. That unexplained disparity gave rise to a justifiable sense of grievance, requiring intervention and resentencing with a 17.5% discount.

Jurisdiction
Australia
Judgment Date
05 August 2015
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed by the District Court on 6 September 2013
Outcome
Leave to appeal granted; sentence appeal allowed on the guilty plea discount disparity; aggregate sentence set aside and applicant resentenced.
Legal Topics
['parity Principle' 'guilty Plea Discount' 'aggregate Sentence' 'commercial Quantity Drug Supply' 'form 1 Offences']
['criminal Law' 'sentencing' 'drug Offences'] ['parity Principle' 'guilty Plea Discount' 'aggregate Sentence' 'commercial Quantity Drug Supply' 'form 1 Offences']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed by the District Court on 6 September 2013

Legal Issues

  1. 1 ["Whether there was a marked disparity between the applicant's sentence and the sentence imposed on co-offender Brendon Tran giving rise to a justifiable sense of grievance." "Whether the starting point for the applicant's sentence was too high compared with Tran's sentence, given Tran's additional offending and the applicant's subjective circumstances." "Whether the applicant's 12.5% utilitarian discount for her guilty plea, compared with Tran's 17.5% discount, constituted unjustifiable disparity."]

Ratio Decidendi

No error was shown in the sentencing judge's assessment of the starting points because the comparison with Tran was not straightforward: Tran was sentenced for additional firearm offences and had some related offences on a Form 1, while aspects of the applicant's subjective case were rejected. However, there was no identifiable basis or stated reason for giving the applicant a 12.5% guilty plea discount when Tran received 17.5%, and the procedural histories did not justify a more favourable discount for Tran. That unexplained disparity gave rise to a justifiable sense of grievance, requiring intervention and resentencing with a 17.5% discount.

Court Disposition

Leave to appeal granted; sentence appeal allowed on the guilty plea discount disparity; aggregate sentence set aside and applicant resentenced.

Orders

  • ['The applicant be granted leave to appeal.' 'The aggregate sentence imposed upon the applicant by the Sydney District Court on 6 September 2013, be set aside.' 'The applicant be re-sentenced to an aggregate term of imprisonment of 10 years and 9 months, to include a non-parole period of 7 years 7 months, to...