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Nguyen v The Queen

Nguyen v The Queen

Case [2021] VSCA 59 17 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0250

TIEN DAT NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2021
DATE OF JUDGMENT:	17 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 59
JUDGMENT APPEALED FROM:	DPP v Nguyen (Unreported, County Court of Victoria, Judge Allen, 6 December 2019)

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CRIMINAL LAW – Sentence – Appeal – Application for leave to appeal – Trafficking drug of dependence in a large commercial quantity – Sentence of 10 years, with non-parole period of 7 years and 6 months – Manifest excess – Whether sentence manifestly excessive – Manifest excess not reasonably arguable – Parity – Co-offenders sentenced in respect of larger quantities of drugs – Different roles of offenders – Different background circumstances – Different circumstances of offending – Parity complaint not reasonably arguable – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC	Richard Revill Lawyers
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
BEACH JA:

The applicant pleaded guilty in the County Court of one charge of trafficking in a drug of dependence in a large commercial quantity. The maximum term of imprisonment for that offence is life. On 6 December 2019, following a plea hearing, the applicant was sentenced to a term of imprisonment of ten years, with a non-parole period of seven years and six months.

Some days earlier, on 25 and 26 November 2019, the judge who sentenced the applicant sentenced six of the applicant’s co-offenders as follows:

Offender Offence Maximum Sentence

Loan Thi Kim Lo (‘Lo’)
Trafficking in a drug of dependence large commercial quantity
Life 13 years, with a non-parole period of 8 years

Thinh Yen (‘Yen’)
1. Trafficking in a drug of dependence large commercial quantity

2. Importing a marketable quantity of a border controlled drug

Life

25 years

Charge 1: 8 years, with a non-parole period of 6 years

Charge 2: 30 months to commence on the completion of the non-parole period in charge 1

Total effective sentence of 8 years and 8 months, with a non-parole period of 7 years

Chinh Khiem (‘Khiem’)
Trafficking in a drug of dependence large commercial quantity
Life 7 years, with a non-parole period of 4 years

Huong Nguyen (‘H Nguyen’)
Trafficking in a drug of dependence large commercial quantity
Life 6 months, together with a community correction order of 4 years

Terry Trinh Ostojic (‘Ostojic’)
1. Importing a marketable quantity of border controlled drug

2. Trafficking in a drug of dependence

25 years

15 years

Charge 1: 2 years to commence on completion of a non-parole period for charge 2, with a recognisance release order for 6 months

Charge 2: 4 years and 6 months, with a non-parole period of 3 years

Total effective sentence of 5 years, with a non-parole period of 3 years and 6 months

Daniele Marchei (‘Marchei’)
1. Trafficking in a drug of dependence large commercial…

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 Queen

Details

AGLC: Tien Dat Nguyen v The Queen [2021] VSCA 59
Case: [2021] VSCA 59
Decision Date: 17 March 2021

CaseChat Overview and Summary

In the High Court of Australia, the case of Nguyen v The Queen concerned an appeal against the sentence imposed on Nguyen for trafficking a drug of dependence in a large commercial quantity. Nguyen was sentenced to 10 years in prison, with a non-parole period of 7 years and 6 months. The appeal was centred on the question of whether this sentence was manifestly excessive and whether the sentencing judge had failed to adequately consider parity with co-offenders who were sentenced for larger quantities of drugs. The core legal issues revolved around the principles of sentencing and the appropriate scope of judicial review in appeals against sentence.

The court examined whether the sentence imposed was manifestly excessive and whether it was reasonably arguable that the sentence was disproportionate to the offence and the offender. The court also considered whether the sentencing judge failed to adequately consider the principle of parity in sentencing, particularly in relation to co-offenders who were sentenced for larger quantities of drugs. In assessing these issues, the court had to determine if there were substantial and compelling circumstances that made the sentence manifestly excessive or if the sentencing judge’s approach to parity was flawed. The court applied principles of sentencing and judicial review to these issues.

The court found that the sentence was not manifestly excessive, as it was within the range of penalties that could be considered appropriate for the offence and the offender's circumstances. The court also concluded that the sentencing judge had adequately considered the principle of parity and that the differences in roles, background circumstances, and the specific circumstances of the offending provided sufficient justification for the varying sentences. The court held that the application for leave to appeal against the sentence was not reasonably arguable, as neither the manifest excess nor parity arguments presented a substantial and compelling case for a different outcome.

The final orders of the court were to refuse the application for leave to appeal against the sentence imposed on Nguyen. This decision upheld the original sentence and non-parole period, affirming the appropriateness of the sentence in the context of the offender's role, background, and the specific circumstances of the offence.

Orders