Nguyen v The Queen - [2017] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0234

HAI DUC NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2017
DATE OF JUDGMENT:	21 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 262
JUDGMENT APPEALED FROM:	DPP (Vic) & DPP (Cth) v Nguyen (Unreported, County Court of Victoria, Judge Douglas, 19 October 2016 and 2 November 2016)

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CRIMINAL LAW — Appeal — Sentence — Commonwealth and State drug trafficking offences — Parity — Whether sentence imposed on individual charge demonstrated unacceptable disparity with co-offender — Judge required to apply principle of totality — No error — Whether manifestly excessive — Leave refused — Lowe v The Queen (1984) 154 CLR 606, Green v The Queen (2011) 244 CLR 462.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Haines & Polites
For the Crown	Mr B L Sonnet	John Cain, Solicitor for Public Prosecutions

PRIEST JA:
COGHLAN JA:

Following a trial in the County Court, on 25 August 2016, a jury convicted the applicant on an indictment which contained six charges for State drug, and related, offences (charges 1, and 3 to 7 inclusive), and one charge for a Commonwealth drug offence (charge 2).

On 19 October 2016, the judge imposed a total effective sentence of 16 years’ imprisonment, and fixed a non-parole period of 12 years. That result was achieved by the judge ordering that the sentence on the Commonwealth offence commence immediately,[1] and that the sentences on the State offences[2] commence on 19 October 2019.[3] The practical result of those orders was to effect cumulation of three years’ imprisonment of the sentences on the State charges upon the Commonwealth sentence.[4] It is convenient to set out the individual sentences in tabular form:
[1]By s 19(3) of the Crimes Act 1914 (Cth), cumulation between federal and State sentences is achieved by the court directing when the federal sentences are to commence. As has been observed more than once by this Court, this is a remarkably clumsy procedure which, as experience has shown, is prone to error.
[2]On the State offences, the sentence on charge 1 was ordered to be the base sentence. Two years of the sentence of imprisonment on charge 6 was ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of 13 years’ imprisonment on the State charges.
[3]See s 16(4) of the Sentencing Act 1991.
[4]So as to correct an error relating to the commencement of the non-parole period, pursuant to s 104A of the Sentencing Act 1991 the sentence imposed on 19 October 2016 was amended on 2 November 2016. See also footnote 31 below.

Charge Offence Sentence

1 Trafficking in a drug of dependence [heroin, 4.813 kilograms (mixture)] — large commercial quantity[5] 11 years

2 Trafficking a commercial quantity of a controlled drug[6] [MDMC, 4.475 kilograms (pure)] 11 years

3 Trafficking in a drug of…

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 [2017] VSCA 262
Case: [2017] VSCA 262
Decision Date: 21 September 2017

CaseChat Overview and Summary

Nguyen was found guilty of drug trafficking offences under both Commonwealth and State laws, and the matter before the court was an appeal against his sentence. The appeal was heard in the High Court of Australia. The key issue for the court was whether the sentence imposed on Nguyen for an individual charge demonstrated an unacceptable disparity with the sentences given to his co-offenders, and if so, whether the trial judge was required to apply the principle of totality to avoid such disparity. Additionally, the court had to determine whether the sentence was manifestly excessive.

In its reasoning, the court noted that while the principle of parity suggests sentences should not be unacceptably disparate, the principle of totality allows for a more comprehensive approach to sentencing, taking into account all charges and offences. The court found that the trial judge had not erred in sentencing Nguyen, as the individual sentence did not demonstrate an unacceptable disparity with the co-offenders' sentences. Furthermore, the court held that the sentence was not manifestly excessive, considering the totality of the offending and the principles of sentencing under both Commonwealth and State laws. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders