Nguyen v The King - [2023] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0102

CAO THIEN NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2023
DATE OF JUDGMENT:	6 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 212
JUDGMENT APPEALED FROM:	[2023] VCC 724 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery in company – Category 2 offence – Applicant required to be sentenced to term of imprisonment without community correction order – Sentenced to 2 years, with non-parole period of 1 year – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

Crimes Act 1958, s 75A, Sentencing Act 1991, s 5(2H).

Azzopardi v The Queen (2011) 35 VR 43, Bugmy v The Queen (2013) 249 CLR 571, Clarkson v The Queen (2011) 32 VR 361, R v Mills [1998] 4 VR 235, R v Verdins (2007) 16 VR 269, Worboyes v The Queen [2021] VSCA 169, referred to.

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Counsel
Applicant:		Mr CK Wareham with Ms M McDonald
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Slades and Parsons
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA:

The applicant pleaded guilty in the County Court to one charge of armed robbery, contrary to s 75A of the Crimes Act 1958. The maximum term of imprisonment for the offence of armed robbery is 25 years. When committed by an offender in company with one or more other persons, as the applicant did in this case, the offence is a category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991. Being a category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment without a community correction order unless one of the exceptions in s 5(2H)(a)–(e) was established.
On 4 May 2023, following a plea hearing conducted on 19 April 2023, the applicant was sentenced to a term of imprisonment of two years, with a non-parole period of one year.[1] Pursuant to s 18 of the Sentencing Act, the judge declared a period of 288 days as pre-sentence detention. Additionally, pursuant to s 6AAA, the judge declared that, but for the applicant’s plea of guilty, he would have sentenced the applicant to three years’ imprisonment, with a non-parole period of two years.
[1]DPP v Nguyen [2023] VCC 724 (‘Reasons’).
The applicant now seeks leave to appeal against his sentence on the ground that the head sentence and non‑parole period are each manifestly excessive. For the reasons which follow, the application for leave to appeal will be refused.

Circumstances of the offending

On 24 June 2022, the applicant telephoned the victim of his offending and arranged to purchase a bottle of whiskey from him for $250. They arranged to meet at an address suggested by the applicant. At approximately 9.00…

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 212
Case: [2023] VSCA 212
Decision Date: 6 September 2023

CaseChat Overview and Summary

The appellant, Nguyen, was convicted of armed robbery in company, a Category 2 offence under the Crimes Act 1958. He was sentenced to two years imprisonment, with a non-parole period of one year. Nguyen appealed against his sentence, arguing that it was manifestly excessive. The appeal was brought before the Supreme Court of Victoria, which had to determine whether the sentence was reasonably arguable as being manifestly excessive, and if leave to appeal should be granted.

The court considered the principle that the power to grant leave to appeal is to be exercised sparingly and that the appeal should only proceed if the sentence is reasonably arguable as being manifestly excessive. The court examined the totality of the circumstances, including the nature of the offence, the degree of Nguyen's participation, and the need to ensure general deterrence. The court noted that the sentence imposed was within the range of sentences typically imposed for this type of offence, and that it was not possible to say that the sentence was manifestly excessive. The court concluded that the sentence was not reasonably arguable as being manifestly excessive.

Consequently, the court dismissed the appeal and refused the application for leave to appeal. The sentence imposed by the County Court was affirmed, and Nguyen was to serve the two-year sentence with a non-parole period of one year. The reasoning of the court was based on the principle that the appeal should only proceed if the sentence was reasonably arguable as being manifestly excessive, and that the sentence imposed was within the range of sentences typically imposed for this type of offence. The court held that the sentence was not manifestly excessive, and that the appeal should not proceed.

Orders