Nguyen v The Queen

Case [2010] VSCA 180


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0755

MINH DUC NGUYEN

Appellant

v

THE QUEEN

Respondent

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JUDGES:

MAXWELL P and WEINBERG JA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

22 June 2010

DATE OF JUDGMENT:

22 June 2010

MEDIUM NEUTRAL CITATION:

[2010] VSCA 180

JUDGMENT APPEALED FROM:

R v Van Nguyen, Khen Van, Minh Nguyen, Van Le & Dat Van Le (Unreported, County Court of Victoria, Judge Hart, 20 August 2007)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence – Handling stolen goods – Prospects of rehabilitation – Sentencing judge failed to consider depressive disorder – R v Tsiaras [1996] 1 VR 398 – Error conceded by Crown – Resentencing ‑ Current sentencing practice – Relevance of maximum penalty – Parity – Resentenced to seven years and six months’ imprisonment, non-parole period four years and eight months.

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APPEARANCES: Counsel Solicitors

For the Appellant 

M G F Meredith Greg Thomas
For the Crown Mr B L Sonnet Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

  1. This is an appeal against sentence by Minh Duc Nguyen, who pleaded guilty to one count of trafficking in a large commercial quantity of heroin and one count of handling stolen goods.  He was sentenced as follows:

COUNT OFFENCE MAXIMUM SENTENCE CUMULATION

1

Trafficking a drug of dependence – large commercial quantity

Life imprisonment

9 y

Base

2

Handling stolen goods

15 y

3 m

-

Total effective sentence:     9 y 

Non-parole period:             6 y 6 m

  1. The appeal will be allowed and the appellant resentenced, for reasons which follow.  There was no dispute on the plea about the factual basis upon which the appellant was to be sentenced.  In the period August to December 2005 he was conducting a business of heroin trafficking.  His counsel conceded on the plea that it was the appellant's own business.  He had various suppliers of heroin, to one of whom we will refer later in these reasons, and a number of different customers to whom he sold the drug.  In the period covered by the presentment, a period of a little over three months at the end of 2005, the appellant trafficked 2.765 kilograms of heroin to his regular customers, in 37 separate transactions.  The heroin was sold in multiples of one ounce.

  1. As the sentencing judge noted in his reasons, the value of the heroin in the appellant's hands was something like $1 million.  Its value would have been considerably greater when sold at street level.  The large commercial quantity of heroin in a mixture is one kilogram.  The quantity trafficked by the appellant was therefore almost three times the amount fixed by Parliament as the threshold for this offence.  It is an offence which carries a maximum penalty of life imprisonment.

Mitigatory features

  1. Defence counsel on the plea accepted that these were serious matters.  Particular reliance was placed, however, on the report of a psychologist prepared a few days…

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Nguyen v The Queen [2010] VSCA 180
Case
[2010] VSCA 180
Decision Date

CaseChat Overview and Summary

The case of Nguyen v The Queen concerns an appeal against the sentence imposed by the County Court of Victoria. The appellant was convicted of trafficking in a large commercial quantity of a drug of dependence and handling stolen goods. The primary dispute in this appeal was the appropriateness of the sentence given by the sentencing judge, particularly whether the judge had adequately considered the appellant's prospects of rehabilitation and his depressive disorder.

The court was required to determine whether the sentencing judge had erred in failing to properly consider the appellant's mental health and its impact on his rehabilitation prospects. The court also needed to assess the relevance of the maximum penalty and parity in sentencing, considering current sentencing practices. The Crown conceded that the sentencing judge had indeed failed to consider the appellant's depressive disorder, an error that could significantly affect the sentence's appropriateness.

The Court of Appeal found that the sentencing judge had overlooked the appellant's depressive disorder, which is a material consideration in sentencing under R v Tsiaras. This oversight was deemed significant enough to warrant a resentencing. The court resentenced the appellant to seven and a half years' imprisonment with a non-parole period of four years and eight months, acknowledging the Crown's concession and aligning with current sentencing practices. The court's decision highlighted the importance of considering all relevant factors, including mental health, in sentencing.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence of imprisonment imposed below is quashed and in lieu thereof the appellant is sentenced as follows:

Count 1: seven and a half years’ imprisonment;

Count 2: three months’ imprisonment.

The total effective sentence is seven and a half years’ imprisonment. A non-parole period of four years and eight months is fixed.

4. All other ancillary orders of Judge Hart made 20 August 2007 are confirmed.

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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