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Nguyen v The King

Nguyen v The King

Case [2023] VSCA 309 8 December 2023

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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,…

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 Nguyen v The King

Details

AGLC: Nguyen v The King [2023] VSCA 309
Case: [2023] VSCA 309
Decision Date: 8 December 2023

CaseChat Overview and Summary

The applicant, Nguyen, appealed against his conviction and sentence in the County Court of Victoria. Nguyen was found guilty on six charges, including recklessly exposing an emergency worker to risk by driving and recklessly conducting endangering life. The County Court imposed a total effective sentence of 7 years’ imprisonment, with a non-parole period of 5 years. Nguyen sought leave to appeal against his sentence on the grounds that it was manifestly excessive, as well as against the orders for cumulation of sentences.

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