Dang Khoa Nguyen v The Queen - [2020] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0033

DANG KHOA NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	14 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 18
JUDGMENT APPEALED FROM:	[2013] VSC 674 (King J)

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CRIMINAL LAW – PROCEDURE – Application for extension of time to file application for leave to appeal against sentence – Convicted of murder and attempted murder – Total effective sentence 24 years’ imprisonment, non-parole period 19 years – Unsatisfactory explanation for substantial delay – No reasonable prospect that Court of Appeal would impose lesser sentence – Application for extension of time refused – Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, Derwish v The Queen [2016] VSCA 72, R v Davis (2003) 6 VR 538; [2003] VSCA 173 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Ternovski	Gallant Law
For the Respondent	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

WHELAN JA:

In 2007 the applicant and two co-offenders were convicted of offences of murder and attempted murder committed on 8 November 2004. On 17 December 2007 the applicant was sentenced on those offences. His convictions were subsequently set aside and he was re-tried and convicted again in October 2013. He was sentenced after the re-trial on 11 December 2013. The sentencing judge in 2013 (King J) was different to the sentencing judge in 2007 (Williams J).

The sentence imposed in 2013 was a total effective sentence of 24 years’ imprisonment with a non-parole period of 19 years. The sentence which had been imposed in 2007 had been a total effective sentence of 21 years’ imprisonment with a non-parole period of 16 years.

The applicant seeks an extension of time within which to apply for leave to appeal the sentence imposed in 2013. The applicant applied for an extension of time by an application dated 7 March 2018.

Principles which apply on applications to extend time

Prior to the decision of the High Court in Kentwell v The Queen[1] the principles which applied to applications for extension of time to apply for leave to appeal against conviction and sentence were considered to be well settled. In R v Davis, Winneke ACJ, with whom Phillips and Eames JJA agreed, said:
[1](2014) 252 CLR 601; [2014] HCA 37 (‘Kentwell’).

The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans J in the case of R v Darby and encapsulated in the reasons for judgment of the Full Court in the case of R v O’Keefe. They have been followed in this court subsequently in numerous applications, including R v Martin, R v Craker and other cases. As Gowans J said in the case of Darby

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSCA 18
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the case of Dang Khoa Nguyen v The Queen, the applicant, convicted of murder and attempted murder, sought an extension of time to file an application for leave to appeal against his sentence. Nguyen was sentenced to a total effective term of 24 years' imprisonment, with a non-parole period of 19 years. The primary legal issue the court had to decide was whether the application for an extension of time to appeal against the sentence was justified, given the substantial delay and the lack of a satisfactory explanation. The court also needed to determine whether there was a reasonable prospect that the Court of Appeal would impose a lesser sentence.

The court considered the factors outlined in Kentwell v The Queen, Derwish v The Queen, and R v Davis. It found that Nguyen had not provided a satisfactory explanation for the delay in filing the application for leave to appeal. Additionally, the court assessed the prospects of success of the appeal and concluded that there was no reasonable prospect that the Court of Appeal would impose a lesser sentence. The court held that the delay was substantial and the explanation offered was unsatisfactory, and thus, the application for an extension of time was refused.

Given the above reasoning, the court dismissed the application for an extension of time. The applicant's attempt to appeal against the sentence was denied due to the significant delay and lack of a satisfactory explanation for that delay. The court found that the prospects of success in the appeal were not reasonable enough to warrant granting the extension of time. Consequently, the applicant's sentence stands as imposed by the trial court.

Orders