| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0067 |
| TONY NGUYEN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 August 2023 |
| DATE OF JUDGMENT: | 12 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 217 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1900 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Sentence – Charges relating to drug offences, possession of firearms and dealing with proceeds of crime – Sentenced to 4 years 10 months’ imprisonment with non-parole period of 3 years – Whether sentence manifestly excessive – No real prospect of success – Extension of time in which to apply for leave to appeal sentence refused.
Clarkson v The Queen (2011) 32 VR 361, Osman v The Queen [2021] VSCA 176 applied.
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| Counsel | |||
| Applicant: | Mr DA Dann KC | ||
| Respondent: | Ms EH Ruddle KC | ||
Solicitors | |||
| Applicant: | Burn City Legal | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA
MACAULAY JA:
On 15 June 2022, the applicant pleaded guilty in the County Court to 10 charges on indictment and one summary charge. The most serious charges were three charges of being a prohibited person possessing a firearm. On that date the judge deferred sentencing the applicant pursuant to s 83A of the Sentencing Act 1991 to allow his prospects of rehabilitation to be assessed and to demonstrate that rehabilitation has taken place. The applicant was released on bail. In August 2022 the applicant breached his bail conditions and was taken into custody. The matter returned to the sentencing judge on 21 October 2022, where further submissions were made on the plea. The appellant was sentenced on 15 November 2022 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Negligently deal with proceeds of crime[1] | 5 years | 12 months | 2 months |
| 2 | Prohibited person possess a firearm[2] | 10 years | 30 months | Base |
| 3 | Knowingly deal with proceeds of crime[3] | 15 years | 27 months | 6 months |
| 4 | Prohibited person possess a firearm[4] | 10 years | 30 months | 8 months |
| 5 | Knowingly deal with proceeds of crime[5] | 15 years | 27 months’ | 6 months |
| 6 | Traffick Methamphetamine[6] | 15 years | 15 months | 4 months |
| 7 | Traffic drug of dependence[7] | 15 years | 9 months | 2 months |
| 8 | Possess drug of dependence (not named)[8] | 5 years | 1 month | Nil |
| 9 | Possess cocaine[9] | 5 years | 3 months | Nil |
| 10 | Possess heroin[10] | 5 years | 1 month | Nil |
[1]Contrary to the Crimes Act 1958, s 194(4).
[2]Contrary to the Firearms Act 1996, s 5(1).
[3]Contrary to the Crimes Act 1958, s 194(2).
[4]Contrary to the Firearms Act 1996, s 5(1).
[5]Contrary to the Crimes Act 1958, s 194(2).
[6]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).
[7]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).
[8]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73(1).
[9]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73(1).
[10]Contrary to the Drugs, Poisons…
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- AGLC
- Nguyen v The King [2023] VSCA 217
- Case
- [2023] VSCA 217
- Decision Date
CaseChat Overview and Summary
The court examined the principles set out in Clarkson v The Queen and Osman v The Queen. It noted that the sentence imposed was within the range of penalties commonly imposed for such offences and did not appear to be manifestly excessive. The court also highlighted that the County Court had given adequate consideration to the relevant aggravating and mitigating factors. The appeal court found that the appellant had no real prospect of success in appealing the sentence, and the application for an extension of time to appeal the sentence was refused.
Consequently, the court dismissed the appeal against sentence, upholding the original sentence imposed by the County Court. The court found that the sentence was proportionate to the offending and did not shock the conscience or sense of justice of the community. The court further held that extending the time to apply for leave to appeal the sentence was not warranted in the circumstances.
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Background
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