Nguyen v The Queen - [2011] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0991

THANH TUNG NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 May 2011
DATE OF JUDGMENT	11 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 139
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge L Ross, 19 December 2008)

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CRIMINAL LAW – Appeal against sentence – Trafficking in commercial and marketable quantities of controlled drugs – Sentenced to total effective sentence of nine years’ imprisonment with non-parole period of seven years – Sentence imposed not more severe than that sought by Crown – No basis for submitting that Crown’s range implied greater than usual gap between total effective sentence and non-parole period – No ‘double punishment’ in sentencing for both counts – Purity of drug low – Quantity of drugs of most importance – Gravity of offending and mitigating factors justified lower sentence than imposed – Appeal allowed – Re-sentenced – Total effective sentence seven years and six months’ imprisonment with non-parole period five years and six months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C Beale	Victoria Legal Aid
For the Crown	Mr M D Phillips	Commonwealth Director of Public Prosecutions

WEINBERG JA
KING AJA:

The appellant, Thanh Tunh Nguyen, pleaded guilty in the County Court at Melbourne to two counts of trafficking in a controlled drug, contrary to the provisions of the Criminal CodeAct 1995 (Cth). Count 1 alleged trafficking in a commercial quantity of MDMA (commonly known as ‘ecstasy’). It carried a maximum of life imprisonment. Count 2 alleged trafficking in a marketable quantity of methamphetamine (commonly known as ‘ice’). It carried a maximum of 25 years’ imprisonment.

The appellant was sentenced to a term of nine years and six months’ imprisonment on count 1, and three years’ imprisonment on count 2. Both sentences were ordered to commence on the same date, and were therefore effectively to be served concurrently. A non-parole period of seven years was fixed. It was conceded by the Crown on the plea that the criminality disclosed in count 2 was entirely subsumed within count 1, given that the tablets that the appellant had trafficked consisted of a combination of MDMA and methamphetamine.

At the time of his arrest, the appellant was in possession of some 77,787 tablets. The total weight of the tablets came to 24.5 kilograms. Of that total weight, there were 881 grams of MDMA and 266 grams of methamphetamine. The commercial quantity for MDMA is 500 grams, and the marketable quantity for methamphetamine is 250 grams.

The appellant’s arrest on 30 October 2007 came about as a result of an investigation by the Australian Federal Police (‘AFP’) into trafficking in ecstasy in the St Albans area. The AFP had obtained telephone intercept warrants, and had recorded various calls between the appellant and others on two separate days, 20 October 2007 and 29 October 2007.

The appellant’s wife was arrested at the…

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 [2011] VSCA 139
Case: [2011] VSCA 139
Decision Date: 11 May 2011

CaseChat Overview and Summary

Nguyen was convicted of trafficking in commercial and marketable quantities of controlled drugs and appealed the severity of the sentence imposed. The case was heard by the court of appeal. The legal issues revolved around the severity of the sentence in relation to the nature of the offence, the disparity between the total effective sentence and the non-parole period, and whether the sentence amounted to ‘double punishment’ for both counts.

The court examined whether the total effective sentence of nine years’ imprisonment with a non-parole period of seven years was more severe than that sought by the Crown. It noted that the sentence was not more severe than that sought by the Crown and there was no basis for arguing that the Crown’s range implied a greater than usual gap between the total effective sentence and the non-parole period. The court also considered whether there was ‘double punishment’ in sentencing for both counts, finding no such issue. The gravity of the offending and the mitigating factors were weighed against the quantity of the drugs, with the latter being of most importance due to the low purity of the drugs. The court concluded that the gravity of the offending and mitigating factors justified a lower sentence than imposed.

The appeal was allowed, and Nguyen was re-sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years and six months. The court’s reasoning focused on the appropriate balance between the severity of the sentence and the nature of the offence, taking into account the mitigating factors and the quantity of the drugs involved.

Orders