Nguyen v The King - [2023] VSCA 217

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…

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 217
Case: [2023] VSCA 217
Decision Date: 12 September 2023

CaseChat Overview and Summary

The appellant, Nguyen, appealed against his sentence in the County Court of Victoria, contending that the sentence imposed was manifestly excessive. Nguyen was convicted on various charges including drug offences, possession of firearms, and dealing with proceeds of crime. The County Court sentenced him to 4 years and 10 months’ imprisonment with a non-parole period of 3 years. The primary legal issue before the court was whether the sentence was manifestly excessive. The court had to consider if the sentence imposed by the County Court was so disproportionate to the offending that it shocked the conscience or sense of justice of the community.

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.

Orders