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…
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- AGLC
- Nguyen v The Queen [2011] VSCA 139
- Case
- [2011] VSCA 139
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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