Nguyen v The Queen - [2012] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0298

SON VAN NGUYEN
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE and HARPER JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2012
DATE OF JUDGMENT:	12 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 297
JUDGMENT APPEALED FROM:	DPP v Son Nguyen (Unreported, County Court of Victoria, 10 November 2011, Judge Montgomery)

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CRIMINAL LAW – Conviction – Pleas of guilty to one charge of conspiracy to commit the offence of importing a marketable quantity of a border controlled drug (474.3 grams of heroin) and one charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug (heroin) – Four additional charges alleging contravention of, respectively, Statutory Declarations Act 1959 (Cth), Passports Act 1938 (Cth) and Migration Act 1958 (Cth) transferred by consent from Magistrates’ Court to County Court – Pleas of guilty to each – Each was an indictable offence – Each erroneously thought to be a summary offence – Convictions on four additional charges quashed – Transfer of those charges by consent to Magistrates’ Court – Criminal Procedure Act2009, ss 158, 168 and 243.

CRIMINAL LAW – Sentence – One charge of conspiracy to commit the offence of importing a marketable quantity of a border controlled drug and one charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug – Sentenced to 5 years and 3 years imprisonment respectively, with two years of the latter sentence to be served cumulatively, giving an aggregate sentence of 7 years’ imprisonment – Whether manifestly excessive – Whether double punishment – Parity – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Haines & Polites
For the Respondent	Mr L Crowley	Commonwealth Director of Public Prosecutions

NEAVE JA
HARPER JA
WILLIAMS AJA:

It is not a rule known to the law, still less to science. But all are aware of its substantial truth. One of the more disconcerting lessons of life is that, if it is possible for something to go weirdly wrong, it probably will. All that is generally needed is time. This case illustrates the point.

A guilty plea is normally followed in a seamless way by a plea and sentence. Occasionally, the plea will be withdrawn by permission of the court. If, for example, it was entered at a time when, through no fault of the accused, he or she was under a material misapprehension and it would be unjust to require the plea to stand, permission for its withdrawal will be given.[1] And, if the plea is to an offence which is unknown to the law, the court will (of its own motion, if necessary) direct that a plea of not guilty be entered.
[1]See, for example, R v Broadbent [1964] VR 733, 735.

This case is quite different to either of the examples given above. Indeed, this case is so highly unusual that it may be unique.

In…

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 [2012] VSCA 297
Case: [2012] VSCA 297
Decision Date: 12 December 2012

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the appellant, Nguyen, was convicted of conspiracy to import a marketable quantity of a border controlled drug, specifically 474.3 grams of heroin, and attempting to possess that quantity of unlawfully imported heroin. The appellant also pleaded guilty to four additional charges in the County Court, which related to contraventions of the Statutory Declarations Act 1959 (Cth), Passports Act 1938 (Cth), and Migration Act 1958 (Cth). These additional charges were initially heard in the Magistrates’ Court before being transferred to the County Court by consent. The appellant's convictions on these additional charges were subsequently quashed as they were erroneously considered summary offences rather than indictable offences.

The primary legal issues before the court were whether the convictions on the four additional charges were valid, and whether the sentences imposed for the drug-related charges were manifestly excessive or amounted to double punishment. The court had to determine whether the appellant's rights under the Criminal Procedure Act 2009 had been upheld, particularly in relation to the transfer of charges and the appropriate classification of those charges.

The court found that the convictions on the four additional charges were quashed due to their erroneous classification. The court then transferred these charges back to the Magistrates’ Court as per the appellant's consent and the provisions of the Criminal Procedure Act 2009. Regarding the sentences for the drug-related charges, the court held that the aggregate sentence of seven years' imprisonment was not manifestly excessive nor did it amount to double punishment. The court found that the sentence was proportionate and in line with similar cases, thus dismissing the appeal.

Orders