CHIEN MINH NGUYEN v THE KING (SA) [2026] SASCA 19

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALLEN) DCCRM-23-006902 Appellant: CHIEN MINH NGUYEN Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING (SA) Counsel: MS K DRAPER WITH MS A ZIMMERMANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 06/11/2025 File No/s: SCCRM-25-009574 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. NGUYEN v THE KING [2026] SASCA 19 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Auxiliary Justice Mitchell) 12 March 2026 CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - LIABILITY TO DEPORTATION This is an application for permission to appeal against sentence. Following guilty pleas for three counts of cultivating a large commercial quantity of cannabis, and one count of trafficking in a large commercial quantity of a controlled drug, the applicant was sentenced to a term of imprisonment of six years and six months, with a non-parole period of five years and two months. The applicant fell to be sentenced as a serious repeat offender. The applicant’s complaint on appeal involved two grounds, which could be conflated. Ultimately, the applicant contended that the sentencing judge erred in failing to find that the applicant should not be caught by the serious repeat offender provisions in s 54 of the Sentencing Act 2017 (SA), and on that basis, the sentence imposed was manifestly excessive. The applicant contended that exceptional circumstances existed to enliven a discretion in the Court to fix a non-parole period of less than four-fifths of the head sentence, including his desire to return home to be with his family who reside in Vietnam, the financial circumstances which motivated his -- 1 of 11 -- offending, the likelihood of deportation upon release, and that his time in custody was, and continues to be, more onerous due to language barriers and lack of familial support. Held, per the Court, refusing permission to appeal and dismissing the appeal: 1. The sentencing judge did not err in declining to find the existence of exceptional circumstances within s 54(2) of the Sentencing Act. The applicant’s personal circumstances were not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. 2. The prospect of deportation did not justify a finding that the consideration of the safety of the community had a much reduced role to play. The protection of the “community” is not confined to the jurisdiction in which the offending occurred, but extends to any community in which the applicant might reside, and the protective purpose of the serious offender provisions cannot be circumvented by an intention to leave the jurisdiction. 3. Although the applicant’s time in custody would be more onerous than that of the general prison population due to language barriers and lack of support, it is not uncommon that a particular individual’s time in custody will be more burdensome than that of another prisoner. There was no error in rejecting the submission that those hardships established exceptional circumstances. 4. Ultimately, the sentencing judge adopted an orthodox approach and identified all relevant factors in undertaking the instinctive synthesis; such that, in the absence of error in the sentencing judge declining to find the existence of exceptional circumstances, the submission that the sentence was manifestly excessive must fail. Controlled Substances Act 1984 (SA) s 33B(1); Sentencing Act 2017 (SA) ss 53, 54, referred to. House v The King (1936) 55 CLR 499, applied. Garlett v Western Australia (2022) 277 CLR 1; Kroni v The Queen (2021) 138 SASR 37; R v Fati (2021) 291 A Crim R 80; R v Fletcher [2025] SASCA 21; R v Kong (2013) 115 SASR 425; R v Lian (2023) 144 SASR 303; R v Lyberopoulos [2017] SASCFC 139; R v Yavuz (2018) 130 SASR 231; R v Young (2016) 126 SASR 41, discussed. Achurch v The Queen (2014) 253 CLR 141; Hackett v The Queen [2021] SASCA 32; Knight v The Queen (2021) 138 SASR 156; Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; Rendic v The Queen (2021) 138 SASR 214; R v Arrowsmith [2018] SASCFC 47; R v Calica [2021] NTSCFC 2; R v Ruwhiu [2023] ACTCA 18; White (a pseudonym) v The Queen (2022) 141 SASR 398, considered. -- 2 of 11 -- NGUYEN v THE KING [2026] SASCA 19 Court of Appeal – Criminal: Bleby and Stanley JJA and Mitchell AJA THE COURT: Introduction 1 This is an application for permission to appeal against sentence. 2 The applicant was sentenced to a term of imprisonment of six years and six months, with a non-parole period of five years and two months for drug trafficking. The sentence imposed followed the applicant’s guilty pleas for three counts of cultivating a large commercial quantity of cannabis contrary to s 33B(1) of the Controlled Substances Act 1984 (SA) (CSA) (Counts 1, 2 and 4); and one count of trafficking a large commercial quantity of a controlled drug contrary to s 32(1) of the CSA (Count 5). 3 The maximum penalty for offending contrary to s 33B(1) of the CSA is a fine of $1 million, or imprisonment for life, or both. The maximum penalty for offending contrary to s 32(1) of the CSA is a fine of $1 million, or imprisonment for life, or both. 4 The applicant fell to be sentenced as a serious repeat offender.1 5 The applicant submits the learned sentencing judge erred in declining to rule that the applicant should not be caught by the serious repeat offender provisions in s 54 of the Sentencing Act 2017 (SA) (Sentencing Act).2 On this basis the applicant submits that the sentence imposed was manifestly excessive. Sentence 6 The applicant’s notional sentence was constructed as follows: (i) for count 1, imprisonment for three years, nine months and 19 days, following a deduction of five per cent for his guilty plea; (ii) for count 2, imprisonment for three years and six months, following a deduction of five per cent for his guilty plea; and (iii) for counts 4 and 5, imprisonment for three years, four months and 16 days, following a deduction of 25 per cent for his guilty plea. 7 That resulted in an aggregate sentence of 10 years, eight months and 28 days. The sentencing judge reduced that notional sentence to six years and six months imprisonment on the basis of the principle of totality. 1 Sentencing Act 2017 (SA) s 53. 2 Sentencing Act 2017 (SA) s 54. -- 3 of 11 -- [2026] SASCA 19 The Court 2 Grounds of Appeal 8 The applicant’s complaint on appeal involves two grounds. First, that the sentence is manifestly excessive; and second, that the sentencing judge erred by failing to declare that s 54(1) of the Sentencing Act did not apply to the applicant. Those two grounds can be conflated. 9 The applicant’s argument amounts to a submission that the sentence ultimately imposed is manifestly excessive because of the failure to find the existence of exceptional circumstances, which the applicant submits would have enlivened the Court to exercise its discretion not to sentence the applicant as a serious repeat offender. Accordingly, the complaint is really one of an outcome error. 10 Relevant to the judge’s exercise of the sentencing discretion, s 54(2) of the Sentencing Act provides: 54—Sentencing of serious repeat offenders (1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender): (a) the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; (b) any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence. (2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that— (a) the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and (b) it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender. Exceptional circumstances 11 Before the sentencing judge, and before this Court, the applicant submitted that exceptional circumstances existed to enliven a discretion in the Court to fix a non-parole period of less than four-fifths of the head sentence. Those personal circumstances were set out in the judge’s sentencing remarks as follows: You are 32 years of age and were born in Vietnam. You are the oldest of four children. Your parents and siblings remain in Vietnam. You immigrated to Australia in 2013 ostensibly to improve your education for a better future. You enrolled in an English course and at that time were supported by your parents who were hardworking fisher people. Regrettably the financial viability of your parents' -- 4 of 11 -- [2026] SASCA 19 The Court 3 fishing business suffered as a consequence of the Chinese Government encroaching upon their fishing grounds in the South China Sea. This resulted in your parents no longer being able to financially support you in Australia. Not only did you struggle financially thereafter, but there was also an expectation that you would send money back to Vietnam to support your now struggling family. You initially obtained a low-paid job fruit picking, but I am told that you simply did not earn enough to support yourself and your family. You were offered a job as a gardener to cultivate cannabis in New South Wales. You were arrested for your role in that enterprise. Following the sentence imposed in New South Wales it was your intention to return to your family in Vietnam. Most unfortunately for you the COVID pandemic then struck, effectively thwarting any ability for you to return home. You moved to Adelaide in dire financial circumstances and found yourself participating in the criminal enterprise that brings you before the Court. It is apparent that your motivation was not driven by commercial drug profiteering, but rather it formed a misguided decision to support yourself and your family in difficult circumstances. Of course this does not excuse your behaviour, but it does explain to some extent how you found yourself committing these extremely serious offences. You are single and have no children. Your time in custody has been very difficult in that you have had little contact with your family. Your difficulties have been exacerbated as a consequence of the collapse of the family fishing business and misfortune visited upon your family by a typhoon striking the area in which they live. You want to return to Vietnam to assist your family. It would seem that it is almost inevitable that you will be deported after you have served your prison term. You have no future in Australia. I accept that your time in custody is more onerous than the general prison population as a consequence of a language barrier and separation from any real form of support. 12 The applicant submits those circumstances outweighed the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence, such that, it was, in all the circumstances, not appropriate that the applicant be sentenced as a serious repeat offender. 13 The applicant submits that exceptional circumstances existed for two reasons: first, the financial circumstances which induced his offending; and second, his lack of access to familial support while in custody. 14 Ultimately, the relevant circumstances the sentencing judge identified by which the applicant sought to establish exceptional circumstances included: (i) the applicant being Vietnamese, and his desire to return to Vietnam; (ii) his family remaining in Vietnam; (iii) the challenging financial circumstances he has faced which motivated his offending to support himself in Australia and his family in Vietnam; and -- 5 of 11 -- [2026] SASCA 19 The Court 4 (iv) that his time in custody has been more onerous as a result of the language barrier and limited access to familial support. 15 In addition, during the course of submissions, the applicant sought to establish that considerations of the safety of the community had a much reduced role to play in his case given the likelihood that he would be deported upon the completion of any prison sentence. 16 A mandatory minimum non-parole period for a person who is a serious repeat offender may be declared not to apply if the two conditions in s 54(2) of the Act are satisfied, namely:3 (i) that the offender’s personal circumstances are so exceptional as to outweigh the paramount consideration of protection of the safety of the community (whether as individuals or in general) and personal and general deterrence; and (ii) that in all the circumstances, it is not appropriate that the person be sentenced as a serious repeat offender. 17 The exceptional circumstances test was explained by this Court in R v Fletcher:4 Exceptional circumstances can include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together are seen as exceptional. The exceptional circumstances must be personal to the offender. Exceptional circumstances may emerge from qualitative considerations (in the sense of circumstances of the type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree). 18 The exercise of the discretion requires consideration of the personal circumstances, the nature and extent of previous offending, and consideration of the offending for which the individual is to be sentenced.5 The exercise of the discretion is dependent upon the facts of the particular case, and the context of the legislative purpose of the mischief to which the provision is directed.6 19 While the circumstances need not be unique, unprecedented or rare, they cannot be regular, routine or usually encountered.7 The term “protection of the community” includes protection from offenders and deterrence of such offending in a general sense.8 3 Sentencing Act 2017 (SA) s 54(2). 4 [2025] SASCA 21 at [11], Lovell JA had under consideration the terms of s 51(2)(a) of the Sentencing Act, which is in identical terms to s 54(2)(a). 5 R v Fletcher [2025] SASCA 21 at [13]. 6 R v Fletcher [2025] SASCA 21 at [13]. 7 Knight v The Queen [2021] SASCFC 12, (2021) 138 SASR 156 at [62]. 8 White (a pseudonym) v The Queen [2022] SASCA 398, (2022) 141 SASR 398 at [87]. -- 6 of 11 -- [2026] SASCA 19 The Court 5 Objective seriousness 20 The gravity of an offence involving cultivation of large commercial quantities, and an offence involving drug trafficking, is reflected in the maximum penalties imposed by the Parliament. This Court has repeatedly emphasised the gravity of drug trafficking, given the harm caused to society. The relevant sentencing considerations have been canvassed in, inter alia, R v Kong,9 R v Young,10 R v Lyberopoulos,11 and R v Yavuz.12 21 This offending was serious. While the parties at trial were not in dispute that the applicant’s role was limited to that of a gardener or assistant, he played a vital role in what was clearly an ongoing commercial drug operation. It is clear that the operation was both sophisticated and commercial, with an intention of making a substantial profit given the anticipated yield and street value of cannabis. The number of plants totalled almost six times that of the prescribed number of plants required to satisfy the definition of a large commercial quantity. The applicant’s prior offending, as well as his lengthy involvement in this offending over the course of 18 months, evidences this was not offending arising from a momentary impulse, but rather a considered decision to engage in criminal offending for financial gain. This left little room for the exercise of leniency by the Court. Deportation 22 As we said earlier, the applicant submits that a more lenient sentence is warranted as a result of his imminent deportation. That submission conflicts with this Court’s adoption of the well-established principle that it is wrong to impose a lesser sentence than is otherwise appropriate, merely because the offender faces the prospect of immediate deportation upon their release from prison.13 23 In R v Fati14 the Court said that imminent deportation does not adequately address the paramount consideration of the protection of the safety of the community.15 To sentence a visitor or non-permanent resident more leniently than Australian citizens who commit the same kind of offence is not proper administration of justice.16 In R v Fati the Court held:17 Even if it could be said that the imminent deportation of the respondent adequately addressed community safety, which it does not, that does not mean that the sentencing court can ignore the secondary purposes of sentencing, such as punishment and deterrence. To do so is misconceived. The community is protected by ensuring that appropriate sentences are imposed and not avoided. Whether the respondent is at continued risk of committing 9 [2013] SASCFC 15, (2013) 115 SASR 425. 10 [2016] SASCFC 102, (2016) 126 SASR 41. 11 [2017] SASCFC 139. 12 [2018] SASCFC 24, (2018) 130 SASR 231. 13 R v Fati [2021] SASCA 99, (2021) 291 A Crim R 80 at [61]. 14 [2021] SASCA 99, (2021) 291 A Crim R 80. 15 R v Fati [2021] SASCA 99, (2021) 291 A Crim R 80 at [67]. 16 R v Fati [2021] SASCA 99, (2021) 291 A Crim R 80 at [69]. 17 R v Fati [2021] SASCA 99, (2021) 291 A Crim R 80 at [67]-[68] citing Rendic v The Queen [2021] SASCA 23, (2021) 138 SASR 214 at [7]-[9]. -- 7 of 11 -- [2026] SASCA 19 The Court 6 crime in South Australia is not the only consideration. Having committed serious crimes, it is necessary that he be punished. As well, general deterrence remains particularly important with offending of this kind because of the recognised capacity of prison sentences to deter those living in our community from engaging in similar, serious crime. That deterrence may well extend to associates of the respondent in this case. It is important to avoid any narrow view of the ways in which the community is protected by an appropriate sentence imposed in the exercise of a discretion which addresses, to the extent relevant, the sentencing objectives recognised by the Act and at common law. A sentence that is appropriately proportioned to the circumstances of the offender and the offending, and which relevantly meets the various statutory and common law sentencing objectives, will usually best ensure the protection of the community. [citations omitted]. 24 The applicant’s submission that his personal circumstances were exceptional given the likelihood of his immediate deportation upon release from prison meant, as maintained by the applicant, that the safety of the community did not require the protection the Parliament had in mind in enacting s 54 of the Sentencing Act. 25 We consider there are two answers to this submission. 26 First, the submission is contradicted by the reasons of Kiefel CJ, Keane and Steward JJ in Garlett v Western Australia:18 The scope of the expression “community” is indeed broad, but its use is appropriate to direct attention to the risk of harm that the offender poses to the members of the organised society with whom he or she may happen to live from time to time. Indeed, it is in this sense that the expression is frequently used in legislation and in the reasons for judgment in the cases, such as Fardon: it is the ordinary and natural language of this field of discourse. The references throughout the HRSO Act to protection of the “community”, in the extended sense, also serve the practical purpose of ensuring that the protective purpose of the HRSO Act cannot be defeated by the simple expedient of an offender stating an intention to leave Western Australia or the Commonwealth. [citation omitted]. 27 Second, as is apparent from these reasons, the legislature is concerned with ensuring the safety of any community in which the applicant might reside. Further, the court is concerned to ensure that the protective purpose of the serious offender provisions cannot be circumvented simply by an offender’s assertion of an intention to leave the jurisdiction. 28 The approach of courts of different Australian jurisdictions to the significance of the prospect of deportation to the exercise of the sentencing discretion has not been uniform.19 In South Australia it is established that, while the risk of deportation is at least potentially relevant to the exercise of the 18 Garlett v Western Australia [2022] HCA 30, (2022) 277 CLR 1 at [101]. 19 See the discussion in R v Arrowsmith [2018] SASCFC 47 at [32] - [37]. See also R v Calica [2021] NTSCFC 2; R v Ruwhiu [2023] ACTCA 18 at [80] - [90]. -- 8 of 11 -- [2026] SASCA 19 The Court 7 sentencing discretion, the sentencing court cannot be invited to speculate.20 As Livesey J, as he then was, with whom Kourakis CJ and Doyle JJ agreed, observed in Kroni:21 Absent evidence or a concession, the mere risk of deportation, even if it is a real risk, cannot be taken into account because the manifestation of that risk will ordinarily be a matter depending upon the future exercise of a Minister's discretion under the [Migration Act 1958 (Cth)]. Even then, the question will remain as to whether there is any basis for a finding that deportation will likely result in hardship. In many cases it may be difficult to see how these considerations, though at least potentially relevant, can materially affect the sentence otherwise to be imposed by the sentencing court. 29 We do not accept that the risk of deportation is a factor in this case which would tip the scale in favour of an exercise of discretion pursuant to s 54(2). A declaration that the serious repeat offender provisions should not apply to the applicant because of the likelihood of deportation would be, as we have said, contrary to the principles enunciated in R v Fati22 and R v Kroni.23 In any event, reliance on the anticipated consequence of deportation to establish exceptional circumstances in the applicant’s case is limited given his expressed intention to return to Vietnam on the completion of his term of imprisonment, and his desire to do so prior to this offending. In those circumstances, it is difficult to see how the prospect of deportation demonstrates hardship. Hardship in custody 30 While the conditions in which an offender serves a sentence of imprisonment may be a relevant factor,24 this is a factor that was recognised and considered by the sentencing judge, as is apparent from his sentencing remarks.25 The sentencing judge accepted the applicant’s time in custody would be more onerous than that of the general prison population. This is because of the language barrier and separation from any real form of support. It is not uncommon that for various reasons a particular individual’s time in custody will be more burdensome than the experience of another prisoner. There is no apparent error in the sentencing judge rejecting a submission that the hardship the applicant has previously experienced in custody warrants a finding of the existence of exceptional circumstances, either solely by reference to those factors or in combination with other factors. The applicant’s circumstances do not present as being so exceptional as to outweigh the paramount consideration of protecting the safety of the community, and personal and general deterrence. 20 Kroni v The Queen [2021] SASCFC 15; (2021) 138 SASR 37 at [203] - [227]. 21 Kroni v The Queen [2021] SASCFC 15; (2021) 138 SASR 37 at [227]. 22 [2021] SASCA 99, (2021) 291 A Crim R 80. 23 [2021] SASCFC 15, (2021) 138 SASR 37. 24 R v Lian [2023] SASCA 122, (2023) 144 SASR 303 at [70]-[71]. 25 Sentencing remarks of Judge Allen DCCRM-23-006902, 10 February 2025, at 4. -- 9 of 11 -- [2026] SASCA 19 The Court 8 Manifest Excess 31 The relevant principles applicable to an appeal on the ground of manifest excess are well settled. Recently this Court in Hackett v The Queen26 explained the operation of those principles as set out in House v The King:27 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge's discretion. [citations omitted]. 32 Given the conclusion that there was no error in the sentencing judge declining to find the existence of exceptional circumstances, the submission that the sentence is manifestly excessive must fail. Conclusion 33 The approach of the sentencing judge was orthodox, conforming to the decisions of the High Court, requiring him to identify all the factors relevant to sentence before weighing and considering their significance and undertaking the instinctive synthesis so as to arrive at the appropriate sentence, given all of the factors relevant to the case.28 The applicant’s recidivist offending across three jurisdictions emphasised the need for the protection of the safety of the community. The sentencing judge’s approach to formulating the sentence was based on a conclusion that the offending was still within the mischief which the Parliament intended to address by the enactment of the serious repeat offender provisions. 34 All the relevant factors were considered by the sentencing judge as part of the process of instinctive synthesis. None were capable of significantly mitigating the applicant’s offending, nor did they provide an adequate foundation to find 26 [2021] SASCA 32 at [8]. 27 [1936] HCA 40, (1936) 55 CLR 499. 28 Achurch v The Queen [2014] HCA 10 (2014) 253 CLR 141 at [7]; Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120 at [26]; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [51]. -- 10 of 11 -- [2026] SASCA 19 The Court 9 exceptional circumstances existed such that s 54(2) of the Sentencing Act should have been applied. Order 35 The application for permission to appeal should be dismissed. -- 11 of 11 --