DPP v Nguyen - [2004] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1518 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

DUC DUNG NGUYEN

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 June, 19 July 2004
DATE OF SENTENCE:	9 August 2004
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2004] VSC 280

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CRIMINAL LAW – Manslaughter – Plea of guilty – Stabbing – Drug trafficking – Considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr M. Gamble	Office of Public Prosecutions
For the Accused	Mr S. Langslow	Robert Stary & Associates

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HIS HONOUR:

Madam Interpreter, I would be obliged if you would translate the proceedings for Mr Nguyen.
INTERPRETER: Yes Your Honour.

HIS HONOUR: Thank you very much.

ORDERS
Before proceeding to sentence I pronounce two formal orders. First, pursuant to s.464ZFB(1) Crimes Act 1958, I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by the accused on 26 February 2003 as to samples be retained for placement on the data base. Next, pursuant to s.78(1) Confiscation Act 1997 I direct that the property referred to in the schedule to the Order that I have signed be forfeited. Those Orders are made and signed, and they will be provided to the parties.
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HIS HONOUR

Mr Nguyen, you have pleaded guilty to the manslaughter on 23 February 2003 at Abbotsford of Mr Hector Nocera. You killed Mr Nocera by stabbing him once in the back with a large knife on the public street in broad daylight. Mr Nocera died within an hour. You fled the scene.

The courts rightly regard the carrying and especially the use of knives in public places as very serious.

At the time of his premature death Mr Nocera was 32 years of age, having been born in Melbourne on 13 December 1970. You were 38 years of age, having been born in Saigon on 10 May 1964.

The circumstances of the crime to which you have pleaded guilty were as follows. On Sunday 23 February 2003 at about 11 a.m. the deceased and Ms Sheree Tennant caught a train from Reservoir to North Richmond. On the train they met two friends known only as Justin and Sophie. At approximately 12.18 p.m. on Sunday, just after noon, the four of them alighted at the North Richmond Railway Station. They remained together and then Justin and Sophie left. At about lunchtime on that Sunday you Mr Nguyen drove a white Toyota Camry sedan to Richmond, parking it in Nicholson Street, running north of Victoria Street Abbotsford. You met up with your stepdaughter, Kathy Nguyen in Victoria Street. You were wearing a black-coloured baseball cap with an emblem on it and you were carrying a black bag over your shoulder. A little over two hours later, just before 2.56 p.m., the deceased and Ms Tennant attended a block of flats at 106 Elizabeth Street Richmond. They…

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

AGLC: Director of Public Prosecutions v Nguyen [2004] VSC 280
Case: [2004] VSC 280
Decision Date: 9 August 2004

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Nguyen was heard in the Supreme Court of Victoria. The accused, Nguyen, had pleaded guilty to manslaughter in relation to a stabbing incident that occurred during a drug transaction. The case presented a complex interplay of criminal law principles concerning manslaughter, the plea of guilty, and the context of drug trafficking.

The primary legal issues before the court involved the application of the principles of manslaughter, particularly voluntary manslaughter, to the facts of the case. The court had to consider whether the circumstances surrounding the stabbing, including the context of drug trafficking, warranted a reduction in the severity of the charge from murder to manslaughter. Additionally, the court needed to address the implications of the plea of guilty and whether it affected the considerations for sentencing.

In delivering the judgment, the court meticulously examined the elements of manslaughter and the defence of provocation. The court found that while the accused had acted in the heat of passion, the context of the drug transaction and the degree of premeditation involved in the stabbing were significant factors. Ultimately, the court determined that the circumstances did not sufficiently reduce the gravity of the crime to warrant a voluntary manslaughter charge. The plea of guilty was noted, but the court emphasised that it did not mitigate the severity of the act. The court concluded that the appropriate charge was manslaughter, reflecting the balance between the accused’s culpability and the mitigating circumstances.

The final orders of the court included the recording of the guilty plea to the charge of manslaughter and the setting of a date for sentencing to further consider the appropriate penalty in light of the mitigating and aggravating factors.

Orders