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Nguyen v The Queen

Nguyen v The Queen

Case [2014] VSCA 53 31 March 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0228

DUY THAI NGUYEN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 March 2014
DATE OF JUDGMENT	31 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 53
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge Chettle, 6 November 2013)

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SENTENCING – Application for leave to appeal against sentence – Application treated as heard instanter – One charge of failing to stop a motor vehicle after an accident, one charge of failing to render assistance, one summary offence of unlicensed driving – Total effective sentence of two years and one months’ imprisonment, with a non-parole period of 12 months – Applicant argued trial judge erred in discounting the applicant’s fear of reprisal attacks at the scene– Application granted and appeal allowed in relation to summary charge only – Sentence and order for total cumulation of sentence for summary charge manifestly excessive – Applicant resentenced to one weeks’ imprisonment to be served concurrently with the sentences imposed on charge 1 and 2 – Wassef v The Queen [2011] VSCA 30.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Challenge Legal
For the Respondent	Ms S A Flynn	Mr C Hyland, Solicitor Public Prosecutions

NEAVE JA
WEINBERG JA:

On 6 November 2013, the applicant pleaded guilty to one charge of failing to stop a motor vehicle after an accident, one charge of failing to render assistance and one summary offence of unlicensed driving. The applicant was sentenced to a total effective sentence of two years and one months’ imprisonment, with a non-parole period of 12 months.

Charges on Indictment Offence Maximum Sentence Cumulation

1 Failing to stop after a motor vehicle accident [s 61(1)(a) of the Road Safety Act 1986] 10 years [s 61(3) Road Safety Act 1986] Licence interventino: Mandatory 4 year cancellation and disqualification following conviction [s 61(6) Road Safety Act 1986] 18 months Base

2 Failing to render assistance after an accident [s 61(1)(b) RoadSafety Act 1986] 10 years [s 61(3) Road Safety Act 1986] Licence interventino: Mandatory 4 year cancellation and disqualification following conviction [s 61(6) Road Safety Act 1986] 18 months 6 months

Summary charge Unlicensed driving [s 18(1) Road Safety Act 1986] 3 months [s 18(1) Road Safety Act 1986] 1 month 1 month

Total Effective Sentence: 2 years and 1 months imprisonment

Non-Parole Period: 12 months imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 87 days

6AAA Statement: The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 3 years imprisonment, with the applicant becoming eligible for parole after serving 2 years of that sentence.

Other relevant orders: All Victorian licences and/or permits held by the applicant were cancelled and he was disqualified from obtaining any such licence or permit for 4…

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 [2014] VSCA 53
Case: [2014] VSCA 53
Decision Date: 31 March 2014

CaseChat Overview and Summary

The applicant, Nguyen, sought leave to appeal against his sentence in the Court of Appeal, following convictions for failing to stop a motor vehicle after an accident, failing to render assistance, and unlicensed driving. The case was treated as heard instantly. The total effective sentence imposed was two years and one month's imprisonment, with a non-parole period of 12 months. Nguyen contended that the trial judge had erred in discounting the fear of reprisal attacks at the scene, which he claimed should have been considered as a mitigating factor. The court was required to determine whether the trial judge's assessment of the mitigating factors was correct and if the sentence was manifestly excessive.

The court reviewed the sentencing principles and the weight given to the mitigating factors by the trial judge. It found that the trial judge had failed to adequately consider the applicant's fear of reprisal attacks at the scene, which was a significant mitigating factor. The court held that the sentence for the summary charge was manifestly excessive, as it was not proportionate to the offence committed. The court also noted that the total cumulation of the sentence for the summary charge was excessive in light of the sentences imposed on the other charges. The appeal was allowed in relation to the summary charge only.

The applicant was resentenced to one week's imprisonment to be served concurrently with the sentences imposed on the other charges. The court held that the original sentence for the summary charge was manifestly excessive and not proportionate to the offence committed. The court considered the totality of the sentence and the need for deterrence and denunciation in reaching its decision. The final orders of the court were that the applicant's appeal against sentence was allowed in relation to the summary charge only, and he was resentenced to one week's imprisonment to be served concurrently with the sentences imposed on the other charges.

Orders