Hung Nguyen v The Queen - [2015] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0095

HUNG NGUYEN	Applicant
v
THE QUEEN	Respondent

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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED
BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2015
DATE OF JUDGMENT:	21 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 283
JUDGMENT APPEALED FROM:	DPP v Nguyen, (Unreported, County Court of Victoria, Judge Sexton, 23 April 2015)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Election after refusal – Applicant convicted of aggravated burglary, rape and other offences – Offending occurred in victim’s home in the presence of her child – Whether the judge erred by impliedly finding that the applicant is a high risk of sexual reoffending – Total effective sentence of nine years and 10 months’ imprisonment – Whether a non-parole period of 7 years and 10 months’ is manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
Applicant in person
For the Crown	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions
Amicus curiae	Mr J McLaughlin	Victoria Legal Aid

WHELAN JA
PRIEST JA:

On 12 March 2015, the applicant pleaded guilty in the County Court to aggravated burglary (charge 1); two charges of rape (charges 2 and 3); one charge of robbery (charge 4); one charge of being a prohibited person in possession of a firearm (charge 5); and one summary charge of being in possession of a prohibited weapon. He was sentenced on 23 April 2015 to be imprisoned for six years on charge 1; for five years on each of charges 2 and 3; for two years on charge 4; for 12 months on charge 5; and for eight months on the summary charge. Orders for cumulation resulted in a total effective sentence of nine years and 10 months’ imprisonment, upon which a non-parole period of seven years and 10 months’ imprisonment was fixed.

The applicant sought leave to appeal against sentence on two grounds as follows:

1. The learned sentencing judge erred by impliedly making a finding that the applicant was a high risk of sexual reoffending. This finding was not reasonably open on the evidence.
2. The learned sentencing judge erred by imposing a [non-parole period] that was manifestly excessive, having regard to the following factors:
(a) Too much weight was given to protection of the community.
(b)Insufficient weight was given to the applicant’s disadvantaged upbringing and the need to impose a ‘meaningful’ parole period.
(c)The NPP was disproportionately high having regard to the head sentence (80 per cent). No reasons were advanced for the disproportionately high NPP. These features invite appellate scrutiny and, in combination with the preceding criticism, are indicative of error.

Pursuant to s 315 of the Criminal Procedure Act 2009, on 12 August 2015, Redlich JA determined ‘on the papers’ that leave to appeal should be…

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 Hung Nguyen v The Queen

Details

AGLC: Hung Nguyen v The Queen [2015] VSCA 283
Case: [2015] VSCA 283
Decision Date: 21 October 2015

CaseChat Overview and Summary

Hung Nguyen was convicted of aggravated burglary, rape, and other related offences. The offences occurred in the victim’s home in the presence of her child. Nguyen applied for leave to appeal against his sentence of nine years and 10 months’ imprisonment, with a non-parole period of 7 years and 10 months. The primary legal issue before the court was whether the judge erred in finding that Nguyen posed a high risk of sexual reoffending and, if so, whether the sentence was manifestly excessive.

The court examined the trial judge’s findings regarding the risk of reoffending and concluded that the trial judge’s assessment was supported by the evidence. The court found that the trial judge had correctly considered the gravity of the offences, the impact on the victim, and the need for deterrence and denunciation. The court held that the sentence imposed was neither manifestly excessive nor disproportionate to the offending. Consequently, the application for leave to appeal was dismissed.

The court’s decision focused on the trial judge’s detailed analysis of the offending and the appropriate punishment. The court acknowledged the severity of the crimes and the need for a sentence that reflected the gravity of the offences. The court found that the sentence was well within the range of sentences that could be imposed for such serious crimes and that the non-parole period was not excessive. The court determined that the sentence was proportionate and appropriate, taking into account all relevant factors.

The final order was that the application for leave to appeal was refused. The sentence imposed by the trial judge was upheld, and Nguyen would continue to serve his sentence as determined.

Orders