Nguyen v The Queen - [2010] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 770 of 2009

DUC MINH NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2010
DATE OF JUDGMENT	16 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 244
JUDGMENT APPEALED FROM	R v Nguyen D (Unreported, County Court of Victoria, 13 August 2009, Judge Duckett)

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CRIMINAL LAW – Appeal against sentence – Drug offences – Crown concession of specific error – Failure to fix a non-parole period by reason of likelihood of deportation not a relevant consideration – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T. Kassamatis	Balmer & Associates Pty
For the Crown	Mr D.A. Trapnell SC	Mr C. Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

The appellant pleaded guilty in the County Court at Melbourne to one count of having, between 1 July 2008 and 29 September 2008, cultivated a narcotic plant, namely Cannabis L, in a quantity not less than the commercial quantity applicable to that plant (count 1), one count of theft of electricity (count 3), one count of having, on 21 September 2008, trafficked in a drug of dependence, namely Cannabis L (count 4), and one count of having on 29 September 2008 had in his possession a drug of dependence, namely Cannabis L (count 5). He was sentenced to a total effective term of two years and five months’ imprisonment. This is an appeal, pursuant to leave granted by Nettle JA, against that sentence.

The primary ground of appeal is that the sentencing judge erred by failing to fix a non-parole period. His Honour declined to do so because he was told, no doubt correctly, that the appellant, who had come to this country on a tourist visa in 2003, and overstayed, would most certainly be deported to Vietnam as soon as he was released from prison. Both the Crown and the defence submitted that it would be inappropriate to fix a non-parole period in those circumstances. The defence submitted that his Honour should deal with the matter by imposing a lower total effective sentence than might otherwise be appropriate.

The authorities make it clear that the likelihood that a person will be deported after that person has completed his or her actual custodial sentence is entirely irrelevant when considering whether a non-parole period should be fixed. The Crown has conceded sentencing error, having regard to the state of the law on this point. It is therefore necessary to re-sentence the appellant.

There is also before the Court an application to extend time within which to file an application for leave to appeal against conviction in relation to count 5. The basis for that application is that, notwithstanding the appellant’s plea of guilty to that count, he could not, as a matter of law, be convicted upon it. He contends that both the conviction, and…

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 244
Case: [2010] VSCA 244
Decision Date: 16 September 2010

CaseChat Overview and Summary

In the matter of Nguyen v The Queen, the appellant sought to appeal his sentence for drug-related offences. The court of appeal was tasked with reviewing the sentence imposed by the lower court. The appeal focused on the sentencing process and the appropriateness of the non-parole period set by the trial judge. The appellant argued that the trial judge had failed to consider his likelihood of deportation as a mitigating factor in determining the non-parole period.

The central issue before the court of appeal was whether the trial judge's omission to consider the appellant's likelihood of deportation in setting the non-parole period constituted a specific error that warranted intervention by the appellate court. The appellant's counsel submitted that the likelihood of deportation was a relevant consideration that should have been factored into the sentencing decision. The Crown, however, conceded that the trial judge's failure to consider this factor was indeed a specific error.

The court of appeal held that the Crown's concession was well-founded, as the likelihood of deportation should have been taken into account when determining the non-parole period. The court observed that the trial judge's failure to consider this factor resulted in a sentence that did not adequately reflect the appellant's personal circumstances. Consequently, the appeal was allowed, and the appellant was re-sentenced with a new non-parole period that took into account his likelihood of deportation. The court emphasised the importance of considering all relevant factors in sentencing, including the likelihood of deportation, to ensure that sentences are proportionate and just.

Orders