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Nguyen v The Queen

Nguyen v The Queen

Case [2019] VSCA 184 19 August 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0106

KHA LUAN NGUYEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2019
DATE OF JUDGMENT:	19 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 184
SENTENCE APPEALED FROM:	(Unreported, 16 April 2018, County Court of Victoria, Judge Coish)

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CRIMINAL LAW — Appeal — Sentence — Trafficking in large commercial quantities of drugs of dependence (heroin, cocaine, methylamphetamine) and associated offences — Total effective sentence 20 years’ imprisonment with 16 years non-parole — Totality — Whether sentence manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J O'Connor	Valos Black & Associates
For the Respondent	Mr J C J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KIDD AJA:

On 15 August 2018, Niall JA granted leave to appeal against sentence in relation to three grounds of appeal.[1] Leave was granted on grounds 1 and 2 which allege that the sentencing judge erred in making orders for cumulation, and that as a result, the overall sentence breached the principle of totality. Leave was also granted on ground 4 which alleges that the total effective sentence is manifestly excessive.
[1]Kha Luan Nguyen v The Queen (Court of Appeal, Niall JA, 15 August 2018) (‘Leave Reasons’).

On 16 April 2018, the appellant was sentenced in the County Court as follows:

Charge Offence Maximum Penalty Sentence Cumulation

1 Traffick in a drug of dependence – large commercial quantity (heroin) [Drugs, Poisons and Controlled substances Act 1981 (‘the Act’) s 71] Life 14 years Base

2 Traffick in a drug of dependence – large commercial quantity (cocaine) [the Act s 71]* Life 9 years 18 months

3 Traffick in a drug of dependence – large commercial quantity (methylamphetamine) [the Act s 71]* Life 8 years 18 months

4 Traffick in a drug of dependence – (MDMA) [the Act s 71AC] 15 years 18 months 5 months

5 Traffick in a drug of dependence – large commercial quantity (methylamphetamine) [the Act s 71]* Life 6 years 15 months

6 Traffick in a drug of dependence (heroin) [the Act s 71AC] 15 years 15 months 5 months

7 Traffick in a drug of dependence (MDMA) [the Act s 71AC] 15 years 15 months 5 months

8 Possess substance, material, documents or equipment for trafficking in a drug of dependence [the Act s 71A] 10 years 12 months 3 months

9 Possess unregistered general category handgun [Firearms Act 1996 s 7B] 7 years or 600 penalty units 12 months 3 months

Related summary charge 11 Possess cartridge ammunition [Firearms Act 1996 s 124] 40 penalty units $400.00 fine -

Total Effective Sentence: 20 years’ imprisonment

Non-Parole Period: 16 years

Pre-sentence detention declared: 952 days

Section 6AAA Statement: 25 years’ with a non-parole period of 20 years

Other Orders: Forfeiture and disposal orders.

*Sentenced as a ‘serious drug offender’ pursuant to s 6F of the

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: Nguyen v The Queen [2019] VSCA 184
Case: [2019] VSCA 184
Decision Date: 19 August 2019

CaseChat Overview and Summary

The appeal against sentence arose from convictions for trafficking in large commercial quantities of drugs of dependence, including heroin, cocaine, and methylamphetamine, along with associated offences. The respondent, Nguyen, was sentenced to a total effective term of 20 years’ imprisonment, with a non-parole period of 16 years, following a plea of guilty to multiple drug trafficking charges. The primary legal issues before the court involved whether the sentence imposed was manifestly excessive, considering the totality of the offending and the principles of sentencing. The appeal centred on whether the sentence was disproportionate and failed to reflect the appropriate balance between punishment, deterrence, and rehabilitation.

In assessing the appeal, the court considered the totality of the offending, which involved the trafficking of substantial quantities of drugs and the associated risks to the community. The court also examined the principles of sentencing, particularly the need for punishment, deterrence, and the promotion of rehabilitation. The court found that the sentence, while severe, was not manifestly excessive. The court emphasised the gravity of the offences, the substantial quantities of drugs involved, and the significant impact on the community. The court concluded that the sentence appropriately balanced the need for punishment and deterrence while also considering the principles of rehabilitation.

The appeal was dismissed by the court. The court held that the sentence was not manifestly excessive and appropriately reflected the seriousness of the offending. The court found that the sentence imposed was commensurate with the gravity of the crimes and the need to protect the community from the harmful effects of drug trafficking. The court's decision underscores the importance of considering the totality of the offending and the principles of sentencing in determining an appropriate sentence for serious drug trafficking offences.

Orders