Nguyen v The King - [2023] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0156

MATTIN NGUYEN	Applicant
v
THE KING	Respondent

---

JUDGES:	WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2023
DATE OF JUDGMENT:	5 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 206
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Lacava, 22 September 2023)

---

CRIMINAL LAW – Appeal – Sentence – Individual sentences of 12 months’ imprisonment for possessing prohibited weapon without exemption and order for cumulation of 6 months held to be manifestly excessive – Applicant also convicted of other offences including home invasion and intentionally cause injury resulting in total effective sentence of 4 years 6 months’ imprisonment and 3 years non-parole – Whether any reasonable prospect Court would reduce total effective sentence despite error in sentence on weapons offences – Leave to appeal granted and appeal allowed – Applicant resentenced to 4 years and 14 days’ total effective sentence, non-parole period of 2 years and 4 months.

Criminal Procedure Act 2009, s280(1)(b); Barwick v The Queen [2015] VSCA 100, Azzopardi v The Queen (2011) 35 VR 43, considered.

---

Counsel
Applicant:		Mr J Gullaci SC with Mr T Glass
Respondent:		Ms K Hamill
Solicitors
Applicant:	Marshall Jovanovska and Ralph
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

On 16 September 2022, the applicant was convicted by plea of guilty in the County Court of five indictable offences and two related summary offences. On 26 September 2022, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Home invasion[1] 25 years 3 years and 6 months Base

2 Intentionally damage property[2] 10 years 1 month Nil

3 Intentionally cause injury[3] 10 years 12 months 6 months

4 Possess drug of dependence[4] 12 months Convicted and discharged N/A

5 Possess drug of dependence 12 months Convicted and discharged Nil

Summary charge 10 Possess prohibited weapon without exemption[5] 2 years 12 months 6 months

Summary charge 11 Possess prohibited weapon without exemption 2 years 12 months Nil

Total Effective Sentence: 4 years and 6 months’ imprisonment

Non-Parole Period: 3 years’ imprisonment

Section 6AAA Statement: 7 years’ imprisonment and non-parole period of 5 years

Other relevant orders: Forfeiture and disposal orders
[1]Contrary to the Crimes Act 1958, s 77A.
[2]Contrary to the Crimes Act 1958, s 197.
[3]Contrary to the Crimes Act 1958, s 18.
[4]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73.
[5]Contrary to the Control of Weapons Act 1990, s 5AA.

The applicant applied for leave to appeal his sentences on a single ground, namely that the individual sentences imposed on summary charges 10 and 11, the order for cumulation concerning summary charge 10, and the total effective sentence and non‑parole period imposed, were manifestly excessive.
For reasons that can be stated succinctly, we conclude that the application for leave to appeal should be granted, the appeal allowed and the applicant resentenced as set out later in these reasons,…

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 206
Case: [2023] VSCA 206
Decision Date: 5 September 2023

CaseChat Overview and Summary

The case of Nguyen v The King involved an appeal against sentence by the applicant, Nguyen, who had been convicted of multiple offences including possessing a prohibited weapon without exemption, home invasion, and intentionally causing injury. The trial judge had sentenced Nguyen to individual sentences of 12 months for possessing a prohibited weapon and 6 months for other offences, with these sentences to run cumulatively. Nguyen's total effective sentence was 4 years and 6 months' imprisonment, with a non-parole period of 3 years. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive.

The primary legal issue before the court was whether any reasonable prospect existed that the Court would reduce the total effective sentence of 4 years and 6 months, despite the error in sentencing on the weapons offences. The court considered whether the cumulative sentence for the weapons offence was appropriate and if the overall sentence was manifestly excessive in light of the applicant’s other convictions and the principles of sentencing. The court also needed to determine whether the total effective sentence could be reduced given the identified error in the sentencing of the weapons offence.

The court found that the cumulative sentence for the weapons offence was inappropriate and the total effective sentence was indeed manifestly excessive. The court acknowledged the seriousness of the applicant's other convictions, particularly those involving home invasion and causing injury, but held that the individual sentence for the weapons offence should not have been cumulative. The court granted leave to appeal and allowed the appeal, resentencing the applicant to a total effective sentence of 4 years and 14 days, with a non-parole period of 2 years and 4 months. The court's decision was influenced by the principles in Barwick v The Queen and Azzopardi v The Queen, as well as the provisions of the Criminal Procedure Act 2009.

Orders