Nguyen v The King - [2023] VSCA 310

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0203

THANG NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 310
JUDGMENT APPEALED FROM:	DPP v Nguyen [2023] VCC 2092 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Plea of guilty to trafficking drug of dependence – Imprisonment for six months – Applicant aged 73 years – Symptoms of Post-Traumatic Stress – Whether sentence manifestly excessive – Leave to appeal refused.

R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Dinsdale v The Queen (2000) 202 CLR 321; Lowndes v The Queen (1999) 195 CLR 665 considered.

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Counsel
Applicant:		Ms SA Stafford and Mr S Cooper
Respondent:		Mr J Johnston
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 11 May 2022, the applicant, who is on the cusp of turning 74,[1] was intercepted at the town of Beveridge, Victoria, driving a car en route to Queensland. Police found 2.1 kilograms of heroin — pressed into six 350-gram blocks — hidden inside the centre console, which had been dismantled to conceal the drugs.
[1]His date of birth is 10 December 1949.
Subsequently, on 16 October 2023, the applicant pleaded guilty before a judge in the County Court to trafficking in a drug of dependence, heroin.[2] In his reasons for sentence, the judge described the basis upon which the prosecution accepted the applicant’s plea:
The prosecution has accepted your plea on the charge of trafficking [simpliciter] on the basis that you were not involved in the concealment of the drugs in the vehicle, did not have actual knowledge of the drugs on board, nevertheless that you were aware of the likelihood that the car that you were driving carried a drug that was being trafficked as an awareness that there was a significant or real chance that your conduct involved trafficking a drug. That is the basis upon which you will be sentenced.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.
When interviewed hours after his arrest, the applicant gave the following account (which was also accepted by the prosecution). Shortly prior to the offending, he was contacted by an unknown male and offered $2,000 to drive a car from Queensland to Victoria and then return it to Queensland. He was not told the purpose. After leaving Queensland on 10 May 2022, he went to an address in Reservoir given to him by text message, arriving at approximately 12.50 pm the next day, where he was met by a Vietnamese woman. While at the address, he slept (as he was tired from driving) and ate some food. At about 5.00 pm he left to take the car back to Queensland as instructed. He was not aware…

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 310
Case: [2023] VSCA 310
Decision Date: 7 December 2023

CaseChat Overview and Summary

The case of Nguyen v The King involved an appeal against the sentence handed down by the court. The applicant, Nguyen, had pleaded guilty to drug trafficking and was sentenced to six months of imprisonment. Nguyen, who was 73 years old at the time, argued that the sentence was manifestly excessive due to his age and the presence of symptoms of Post-Traumatic Stress. The High Court of Australia was tasked with determining whether the sentence was indeed manifestly excessive and whether the applicant should be granted leave to appeal.

The legal issues at hand centred on the principles of sentencing in criminal law, particularly in relation to the severity of the sentence in light of the offender's age and mental health conditions. The court needed to consider the principles of proportionality, individualisation, and deterrence in sentencing, as well as the precedents set by previous cases such as R v Verdins, Worboyes v The Queen, Dinsdale v The Queen, and Lowndes v The Queen. These cases provided guidance on the factors that should be considered when assessing the severity of a sentence, particularly in relation to the offender's age, health, and personal circumstances.

The court carefully considered the arguments presented by the applicant and the submissions of the respondent, the Crown. It examined the principle of proportionality in sentencing, which requires that the severity of the sentence should be commensurate with the gravity of the offence. The court also considered the individualisation principle, which requires that the sentence should be tailored to the particular circumstances of the offender. The court found that, while the applicant's age and health were relevant factors, they did not outweigh the gravity of the offence or the need for deterrence. The court concluded that the sentence was not manifestly excessive and that the applicant had not demonstrated a sufficient ground of appeal. Consequently, the court refused the applicant's application for leave to appeal.

The final orders of the court were that the application for leave to appeal against sentence was refused, and the original sentence of six months imprisonment was upheld. The court's decision emphasised the importance of considering the principles of sentencing in criminal law and the need to balance the individual circumstances of the offender with the broader objectives of the criminal justice system.

Orders