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Nguyen v The King

Nguyen v The King

Case [2024] VSCA 290 28 November 2024

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0115

ANH THAI NGUYEN	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2024
DATE OF JUDGMENT:	28 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 290
JUDGMENT APPEALED FROM:	DPP v Nguyen [2023] VCC 1171 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Recklessly exposing an emergency worker to risks by driving and reckless conduct endangering life – Appellant drove vehicle on pedestrian footpath to evade police – Police officer exposed to risk – Pedestrians and workers endangered – Total effective sentence of 7 years’ imprisonment with 5 years non-parole – Whether individual sentences manifestly excessive – Whether orders for cumulation resulted in a total effective sentence that is manifestly excessive – Whether principle of totality breached in circumstances where one course of conduct resulted in multiple victims – Lack of remorse – Poor criminal history for driving offences – Appeal dismissed.

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Counsel
Appellant:		Mr T Kassimatis KC with Ms A Balkin
Respondent:		Ms DI Piekusis KC
Solicitors
Appellant:	Papa Hughes Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

•

PRIEST JA

T FORREST:

Introduction

Pursuant to leave granted by Taylor JA on 8 December 2023,[1] Anh Thai (‘Jackie’) Nguyen appeals against a total effective sentence of seven years’ imprisonment, with a non-parole period of five years, imposed by a County Court judge on 8 June 2023 for recklessly exposing an emergency worker to risk by driving[2] (one charge – charge 1) and reckless conduct endangering life[3] (six charges – charges 2 to 7 inclusive), imposed following jury verdicts in a trial in which the principal issue was identity.
[1]Nguyen v The King [2023] VSCA 309 (Taylor JA) (‘Leave reasons’).
[2]Crimes Act 1958, s 317AE. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
The structure of the sentence imposed may readily be appreciated when it is set out in tabular form:

Charge Offence Sentence Cumulation

1 Recklessly exposing an emergency worker
to risks by driving 4 years Base

2 Reckless conduct endangering life 3 years and 8 months 8 months

3 Reckless conduct endangering life 3 years and 8 months 8 months

4 Reckless conduct endangering life 3 years and 8 months 8 months

5 Reckless conduct endangering life 3 years and 6 months 4 months

6 Reckless conduct endangering life 3 years and 6 months 4 months

7 Reckless conduct endangering life 3 years and 6 months 4 months

Total effective sentence: 7 years’ imprisonment

Non-parole period: 5 years

Pre-sentence declaration: 418 days

Other orders: Pursuant to s 89 of the Sentencing Act 1991, driver licence cancelled and disqualified for 2 years.

The appellant’s sole ground of appeal contends that the individual sentences of imprisonment are manifestly excessive, and the orders for cumulation resulted in a total effective sentence that is too long, as is the non-parole…

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 [2024] VSCA 290
Case: [2024] VSCA 290
Decision Date: 28 November 2024

CaseChat Overview and Summary

The appellant, Nguyen, appealed against the sentence imposed by the County Court for recklessly exposing an emergency worker to risk by driving and reckless conduct endangering life. The appellant drove his vehicle on a pedestrian footpath in an attempt to evade police, thereby exposing a police officer to risk and endangering pedestrians and workers. The trial judge imposed a total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years. The appellant argued that the individual sentences were manifestly excessive and that the orders for cumulation resulted in a total effective sentence that was manifestly excessive. The appellant also contended that the principle of totality was breached, given that one course of conduct resulted in multiple victims. The appellant further argued that the trial judge had not taken into account his lack of remorse and poor criminal history for driving offences.

The court considered the principles of sentencing and the principle of totality, which requires that the total sentence should not be greater than the sum of the separate penalties for each offence. The court noted that the appellant's conduct was egregious and that the trial judge had appropriately considered the principles of sentencing, including the need for general deterrence. The court also noted that the appellant's lack of remorse and poor criminal history for driving offences were relevant factors to consider in determining the appropriate sentence. However, the court found that the total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years, was not manifestly excessive. The court also found that the principle of totality had not been breached, given that the appellant's conduct was a single course of conduct that resulted in multiple victims.

The appeal was dismissed. The court found that the total effective sentence imposed by the trial judge was appropriate, and that the principle of totality had not been breached. The court also noted that the appellant's lack of remorse and poor criminal history for driving offences were relevant factors to consider in determining the appropriate sentence. However, these factors did not outweigh the seriousness of the appellant's conduct, which endangered the lives of emergency workers, pedestrians, and workers. The court found that the total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years, was an appropriate reflection of the seriousness of the appellant's conduct and the need for general deterrence.

Orders