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…
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- AGLC
- Nguyen v The Queen [2012] VSCA 297
- Case
- [2012] VSCA 297
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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