Nguyen v The Queen

[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…