Nguyen v The Queen - [2013] VSCA 317

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0064

DUC QUY NGUYEN
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2013
DATE OF JUDGMENT	19 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 317
JUDGMENT APPEALED FROM	DPP v Nguyen (Unreported, County Court of Victoria, Judge Patrick, 26 October 2012)

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CRIMINAL LAW – Application for extension of time within which to file application for leave to appeal against sentence – Lengthy delay in instituting appeal largely brought about by dilatoriness of applicant’s former legal advisers – Applicant pleaded guilty to trafficking large commercial quantity of drug of dependence (Cannabis L), theft of electricity and dealing in proceeds of crime – Sentenced to ten years’ imprisonment with non-parole period of seven years – Applicant suffered from major depressive disorder and adjustment disorder – Sentencing judge discounted weight to be given to these conditions because substantially product of applicant’s own offending – Whether sentencing judge erred in application of R v Verdins – Specific error demonstrated – Appeal allowed – Resentenced to nine years’ imprisonment with non-parole period of six years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
COGHLAN JA:

The applicant, having had his application for an extension of time within which to file a notice of application for leave to appeal against sentence refused by the Registry, has elected to have that application determined by the Court of Appeal, pursuant to Rule 2.24 of the Supreme Court (Criminal Procedure) Rules 1998.

On 26 October 2012, after pleading guilty to a number of drug-related charges, the applicant was sentenced as follows:

Charge on
Indictment
B10971853 Offence Maximum Sentence Cumulation

1 Traffick large commercial quantity of drug of dependence (Cannabis L) Life [Drugs Poisons and Controlled Substances Act 1981 s 71] 9 years Base

2 Theft 10 years [Crimes Act 1958 s 74] 12 months 3 months

3 Theft 10 years [Crimes Act 1958 s 74] 6 months 1 month

4 Deal in proceeds of crime 15 years [Crimes Act 1958 s 194(2)] 2 years 8 months

Total effective sentence: 10 years

Non-parole period: 7 years

s. 6AAA declaration:

· TES: 14 years

· NPP: 11 years

It was not until 2 May 2013, some six months or so after he had been sentenced, that the applicant first sought to file an application for an extension of time, which, if granted, would have enabled him to seek leave to appeal against sentence. That same day, the applicant filed a notice of application for leave to appeal against sentence which relied solely upon the following ground:

The sentencing discretion miscarried as a result of the Judge’s having found that the additional burden of imprisonment “should operate in only a very minor way in mitigation” because the factors that contributed to the Applicant’s…

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 [2013] VSCA 317
Case: [2013] VSCA 317
Decision Date: 19 November 2013

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the applicant, Nguyen, sought an extension of time within which to file an application for leave to appeal against the sentence imposed upon him. Nguyen had pleaded guilty to trafficking a large commercial quantity of the drug of dependence, theft of electricity, and dealing in proceeds of crime. As a result, he was sentenced to ten years' imprisonment with a non-parole period of seven years. The applicant’s appeal was largely delayed due to the dilatoriness of his former legal advisers, and he contended that the sentencing judge erred in the application of R v Verdins in discounting the weight to be given to his major depressive disorder and adjustment disorder. The court had to determine whether the sentencing judge made a specific error in the application of R v Verdins and whether the delay in instituting the appeal should be excused.

The primary legal issue before the court was whether the sentencing judge erred in the application of R v Verdins by discounting the weight to be given to Nguyen's mental health conditions. The court also needed to assess whether the error demonstrated was specific and whether the lengthy delay in instituting the appeal could be excused. The court examined the sentencing remarks and the principles set out in R v Verdins to determine if there had been an error in the application of the law.

The court found that the sentencing judge did err in the application of R v Verdins by not appropriately considering the mitigating effect of Nguyen's mental health conditions. The court noted that the sentencing judge's approach to the mental health conditions was flawed and did not accurately reflect the principles set out in R v Verdins. Furthermore, the court determined that the error demonstrated was specific and warranted the allowance of the appeal. Although the delay in instituting the appeal was largely due to the dilatoriness of Nguyen's former legal advisers, the court found that exceptional circumstances existed to excuse the delay. Consequently, the appeal was allowed, and Nguyen was resentenced to nine years' imprisonment with a non-parole period of six years.

Orders