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Nguyen v The King

Nguyen v The King

Case [2025] VSCA 3 13 February 2025

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0135

CHO NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 January 2025
DATE OF JUDGMENT:	13 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 3
JUDGMENT APPEALED FROM:	[2024] VCC 609 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Totality principle – Offences committed while on parole – Parole cancelled and applicant required to serve remainder of original sentence for prior offending – Whether totality principle required consideration of time spent on remand that was not pre-sentence detention – No different sentence would be imposed – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by mistaking the applicable speed limit – No material error established – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether manifestly excessive – Conduct endangering persons – Driving motor vehicle – Current sentencing practice – Significant objective gravity of offending – Total effective sentence was within range reasonably open to sentencing judge – Leave to appeal refused.

Sentencing Act 1991, s 16(1A).

Bugmy v The Queen (2013) 249 CLR 571; DPP v Bowen (2021) 65 VR 385; DPP v Nguyen [2024] VCC 609; DPP v Pusey [2021] VCC 478; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Sepehrnia v The King [2024] VSCA 149, considered.

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Counsel
Applicant:		Mr T Clamart
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ:

On his plea of guilty the applicant was sentenced by a judge of the County Court for three indictable and two summary offences.[1] The most serious of these was a charge of reckless conduct endangering serious injury (charge 1), which arose as a result of his reckless driving on the Western Freeway and which culminated in his vehicle colliding with another car. The prosecution alleged that the applicant drove his vehicle for around 17 minutes in a manner that endangered other road users. The prosecution relied principally on dashcam footage taken from the applicant’s own vehicle which provided clear vision of the driving over the relevant period. It also relied upon, amongst other things, the applicant’s admission that he estimated his speed to be around 130 to 140 kilometres per hour.
[1]DPP v Nguyen [2024] VCC 609 (‘Reasons’).
The agreed prosecution summary, on which the plea proceeded, said that the applicant drove his car at a speed considerably faster than surrounding traffic, drifted between lanes and followed cars at a dangerously close distance. All of that is clearly depicted in the footage which was viewed both by the sentencing judge and by this Court. Throughout this period, the applicant can be heard swearing and expressing frustration with other drivers whom he perceived were blocking his passage.
Immediately before the collision, the applicant…

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 [2025] VSCA 3
Case: [2025] VSCA 3
Decision Date: 13 February 2025

CaseChat Overview and Summary

The case of Nguyen v The King involved the appellant appealing various aspects of his sentencing for criminal offences. The appellant had committed additional offences while on parole, leading to the cancellation of his parole and a requirement to serve the remainder of his original sentence. The appeal addressed three main issues: whether the totality principle required consideration of time spent on remand that was not pre-sentence detention, whether the sentencing judge had erred by misapplying the speed limit, and whether the total effective sentence was manifestly excessive. The Court of Appeal examined the principles of sentencing, the objective gravity of the offending, and the relevant statutory provisions in determining the appeal.

The first issue concerned whether the sentencing judge should have taken into account the time spent on remand that was not pre-sentence detention when applying the totality principle. The Court of Appeal held that no different sentence would be imposed if this factor had been considered. The second issue involved the sentencing judge's understanding of the applicable speed limit. The Court found that no material error was established in this regard, and the appeal on this point was refused. The third issue focused on the severity of the sentence in relation to the objective gravity of the offending. The Court determined that the total effective sentence was within the range reasonably open to the sentencing judge and that the sentence was not manifestly excessive.

The Court of Appeal granted leave to appeal on the first issue but dismissed it, finding that no different sentence would result from considering the additional remand time. The appeals on the second and third issues were refused, with the Court holding that no material error was made regarding the speed limit and that the total effective sentence was not manifestly excessive. Consequently, the appellant's sentence was upheld as determined by the sentencing judge.

Orders