Nguyen v The Queen - [2010] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0958

DUC TAN NGUYEN
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 October 2010
DATE OF JUDGMENT	27 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 284
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge Rizkalla, 19 December 2008)

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Criminal Law – Sentence – Armed robbery, being a prohibited person in possession of a firearm, recklessly placing a person in danger of serious injury and intentionally causing injury – Total effective sentence ten and a half years with non-parole period of eight and a half years – Appellant spent period of ‘dead time’ in custody before being sentenced for current offences – Whether sentencing judge gave inadequate weight to totality in sentencing synthesis – Appeal allowed – Appellant re-sentenced – Total effective sentence of eight years imprisonment with non-parole period of six years – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A P Lewis	Lethbridges
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Duc Tan Nguyen pleaded guilty in the County Court to four offences committed at Springvale on 2 May 2006: armed robbery (count 1); being a prohibited person in possession of a firearm (count 2); recklessly placing a person in danger of serious injury (count 3); and intentionally causing injury (count 4). On 19 December 2008, he was sentenced as follows:

Count 1 - 8 years’ imprisonment;

Count 2 - 2 years’ imprisonment;

Count 3 - 1 year’s imprisonment;

Count 4 - 2 years’ imprisonment.

The judge cumulated 1 year of the sentence on count 2, 6 months of the sentence on count 3; 12 months of the sentence on count 4 on each other and on the sentence on count 1. The total effective sentence was thus 10 years and 6 months. The judge fixed a non-parole period of 8 years and 6 months. She made a declaration under s 6AAA of the Sentencing Act 1991 (Vic) that had the appellant not pleaded guilty, and had he been convicted, she would have imposed a total effective sentence of 13 years with a non-parole period of 10 years.
Grounds

Now the appellant appeals by leave against sentence. As finally articulated, he relies upon the following grounds:

1.The Learned Sentencing Judge erred by failing to give any or any sufficient weight to the principle of totality.
2.The Learned Sentencing Judge erred by failing to give any or any sufficient weight to the period of ‘dead time’ that the appellant had spent in custody prior to being sentenced for the current offences.
3.The Learned Sentencing Judge erred by failing to give sufficient weight to the mistreatment that the appellant suffered as a result of the conduct of various members of the Armed Offenders Squad.
(Reasons for Sentence paragraphs 11 – 16).
….
7.The Learned Sentencing Judge erred in sentencing the appellant on 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 [2010] VSCA 284
Case: [2010] VSCA 284
Decision Date: 27 October 2010

CaseChat Overview and Summary

The appellant, Nguyen, appealed against his sentence for multiple serious criminal offences including armed robbery, being a prohibited person in possession of a firearm, recklessly placing a person in danger of serious injury, and intentionally causing injury. The case was heard in the High Court of Australia. The central issue in the appeal was whether the sentencing judge had appropriately considered the principle of totality in sentencing, particularly in relation to the time the appellant had already spent in custody before being sentenced for these current offences.

The court was tasked with determining whether the original sentencing judge had adequately accounted for the period of "dead time" Nguyen had already spent in custody, and if the total effective sentence was proportionate to the gravity of the crimes committed. The appellant argued that the sentencing judge had failed to give sufficient weight to the time already spent in custody, resulting in an overly punitive sentence. The High Court considered whether the original sentence should be reduced to reflect the time already served and the principle of totality in sentencing.

The High Court found that the original sentencing judge had not given adequate consideration to the principle of totality in sentencing. The court held that the appellant had spent a considerable period of time in custody before being sentenced for the current offences, which should have been factored into the overall sentence. As a result, the court allowed the appeal, reducing the total effective sentence from ten and a half years to eight years, with a non-parole period of six years. The High Court's decision clarified the application of the principle of totality in sentencing but did not create a binding precedent for future cases.

Orders