| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0115 |
| ANH THAI NGUYEN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 8 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen [2022] VCC 1171 (Judge Cannon) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Recklessly exposing emergency worker to risk by driving – Reckless conduct endangering life (six charges) – Criminal history relating to driving offences – No remorse – Poor prospects of rehabilitation – Total effective sentence of 7 years’ imprisonment with non-parole period of 5 years – Whether sentence manifestly excessive – Whether orders for cumulation manifestly excessive – Leave to appeal granted.
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| Counsel for written submissions | |||
| Applicant: | Mr JR Murphy | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Papa Hughes Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and overview
On 11 November 2022 a County Court jury convicted the applicant of one charge of recklessly exposing an emergency worker to risk by driving and six charges of reckless conduct endangering life.
Following a plea hearing on 26 April 2023 he was sentenced on 8 June 2023 as follows
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Recklessly expose emergency worker to risk by driving[1] | 10 years | 4 years | Base |
| 2 | Reckless conduct endangering life[2] | 10 years | 3 years and 8 months | 8 months |
| 3 | Reckless conduct endangering life | 10 years | 3 years and 8 months | 8 months |
| 4 | Reckless conduct endangering life | 10 years | 3 years and 8 months | 8 months |
| 5 | Reckless conduct endangering life | 10 years | 3 years and 6 months | 4 months |
| 6 | Reckless conduct endangering life | 10 years | 3 years and 6 months | 4 months |
| 7 | Reckless conduct endangering life | 10 years | 3 years and 6 months | 4 months |
| Total Effective Sentence: | 7 years’ imprisonment | |||
| Non-Parole Period: | 5 years | |||
| Pre-sentence Detention Declared: | 418 days | |||
| Other Relevant Orders: Driver licence cancelled and disqualified from obtaining a further licence for a period of two years pursuant to s 89 of the Sentencing Act 1991, charge 1 being a ‘serious motor vehicle offence’ under that Act. | ||||
[1]Contrary to s 317AE of the Crimes Act 1958 (‘Crimes Act’).
[2]Contrary to s 22 of the Crimes Act.
The applicant seeks leave to appeal against sentence on the following ground:
The sentences imposed were, in the circumstances, manifestly excessive.
Particulars
(i)The sentences on each of the charges, and the non-parole period, were manifestly too long.
(ii)The orders for cumulation resulted in a total effective sentence that was manifestly too long.
(iii)In those circumstances, it should be inferred that the learned sentencing judge: gave too much weight to some matters, such as the seriousness of the offence and the Applicant’s moral culpability; gave insufficient weight to matters in mitigation,…
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- AGLC
- Nguyen v The King [2023] VSCA 309
- Case
- [2023] VSCA 309
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the sentence imposed by the County Court was manifestly excessive. The court needed to consider the totality of the circumstances, including the nature and circumstances of the offences, Nguyen's criminal history, and the principles of sentencing for similar offences. Additionally, the court had to determine whether the orders for cumulation of sentences were manifestly excessive.
The court acknowledged that the offences committed by Nguyen were serious and involved a significant degree of recklessness. It recognised that he had a history of driving offences and displayed no remorse for his actions. However, the court found that the sentence imposed was manifestly excessive. The court noted that the sentence was at the higher end of the scale for such offences and did not adequately reflect the principles of proportionality and individualisation. The court also found that the orders for cumulation of sentences were manifestly excessive, as they did not take into account the overlapping nature of the offences.
Accordingly, the court granted Nguyen leave to appeal against his sentence and the orders for cumulation of sentences. The case will now proceed to the Court of Appeal for further consideration of the appropriate sentence and orders for cumulation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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