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DPP v Nguyen

DPP v Nguyen

Case [2010] VSCA 31 26 February 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 564 of 2008

THE DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
TUAN DANG NGUYEN	Respondent

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JUDGES:	MAXWELL P, BONGIORNO JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2010
DATE OF JUDGMENT:	26 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 31
JUDGMENT APPEALED FROM:	DPP v Nguyen [2008] VSC 11 (Teague J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Two counts – Unpremeditated savage attack with knife – Children present – Late plea of guilty – Total effective sentence 25 years’ imprisonment – Non-parole period 20 years – Not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr T Kassimatis	Theo Magazis & Associates

ROSS AJA:

Background

On 23 October 2007 the respondent pleaded guilty to the murder of two women, Ba Nguyen (then aged 50) and Khanh Le (then aged 26), and to one count of theft of a motor vehicle, which had belonged to one of the victims. The respondent was subsequently sentenced as follows:

Count 1(the murder of Ba Nguyen):          19 years’ imprisonment
Count 2(the murder of Khanh Le):             19 years’ imprisonment
Count 3(theft of a motor vehicle):               1 month’s imprisonment.

The sentencing judge directed that six years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The sentence imposed on count 3 was to be served concurrently. Thus, the total effective sentence imposed was 25 years’ imprisonment, and the sentencing judge fixed a non-parole period of 20 years’ imprisonment.

The facts found by the sentencing judge may be shortly stated.

Ba Nguyen and her son, Vu Do, ran a business organising grape pickers for growers in the Robinvale area. The respondent was one of those pickers.

On the morning of 1 April 2001, Vu Do left his house in Robinvale to transport pickers to local farms. Ba Nguyen remained in the house with Khanh Le (Vu Do’s then girlfriend) and four young children. Two of the children were Vu Do’s daughters, Vivian and Valerie, then aged six and four respectively. Ba Nguyen was babysitting her granddaughters and two other children, who were not then two years of age. The sentencing judge described what happened in these terms:

Just before 10am, Ba Nguyen was preparing to leave the house to get some exercise. You knocked on the front door of the house. The door was opened by Vivian. You asked for Vu Do. Ba Nguyen came to the door. She told you that Vu Do was at work. She asked you to come in. She went to the kitchen, and you followed her. You asked her for a pen and paper. These she provided, and you made use of them. Ba Nguyen told you she was going for a run. She walked towards the back door. It was then that you took hold of and…

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.

Continue reading DPP v Nguyen

Details

AGLC: DPP v Nguyen [2010] VSCA 31
Case: [2010] VSCA 31
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Nguyen involves an appeal against the sentencing of a defendant found guilty of two counts of murder. The crimes involved an unpremeditated, savage attack with a knife in the presence of children, which resulted in the deaths of two individuals. The appellant, who was originally found not guilty by reason of insanity, successfully appealed the verdict and entered a late plea of guilty. The primary issue before the court was whether the total effective sentence of 25 years' imprisonment, with a non-parole period of 20 years, was manifestly inadequate.

The court was required to consider the principles of sentencing for murder, particularly the gravity of the crimes and the appellant's culpability. It also needed to assess whether the sentence was manifestly inadequate, taking into account the nature and circumstances of the offences and the appellant's culpability. The court further examined the principle of parity in sentencing, ensuring that the sentence was proportionate to similar cases.

The court held that the total effective sentence was not manifestly inadequate. It emphasised the extreme brutality and randomness of the attack, the presence of children, and the significant harm caused to the victims. The court also noted the appellant's late plea of guilty and the principle of finality in criminal cases. In light of these considerations, the court found that the sentence imposed was appropriate and did not constitute a manifest inadequacy. Consequently, the appeal against the sentence was dismissed.

Orders