R v Bac Ai Nguyen Vu - [2009] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 940 of 2008

THE QUEEN
	v
BAC AI NGUYEN VU

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JUDGES	NEAVE, REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2009
DATE OF JUDGMENT	9 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 231
JUDGMENT APPEALED FROM	R v Nguyen Vu Bac Ai (Unreported, County Court of Victoria, Judge Duckett, 27 November 2008)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to two counts of obtaining property by deception and found guilty by a jury of five counts of handling stolen goods and one count of obtaining property by deception – Offences arose out of single act of receiving stolen goods and multiple acts of selling those stolen goods – Whether double punishment – Whether sentences imposed required to be proportionate to number or value of goods subject of the count – Application granted and appeal allowed – Applicant re-sentenced – Mitigating factors including no prior convictions, good work record, good prospects of rehabilitation, making of reparations and inability to pursue career.

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Appearances:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Luat Tran & Associates

NEAVE JA:

The applicant, Bac Ai Nguyen Vu, was presented in the County Court on 20 counts of handling stolen goods and on 15 counts of obtaining property by deception. He pleaded guilty to count 25 and count 31, each of which were counts of obtaining property by deception He was found guilty by a jury on five counts of handling stolen goods (counts 24, 26, 28, 30 and 34) and on one other count of obtaining property by deception (count 29).

The maximum penalty for handling stolen goods is imprisonment for 15 years and the maximum penalty for obtaining property by deception is imprisonment for 10 years.

After hearing a plea in mitigation of sentence, the judge sentenced the applicant as follows.

Count Offence Term Cumulation

24 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and all other sentences imposed

25 Obtaining property by deception 2 months’ imprisonment Half a month on count 29 and on all other sentences imposed

26 Handling stolen goods
4 months’ imprisonment
1 month on count 29 and on all other sentences imposed

28 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed

29 Obtaining property by deception 6 months’ imprisonment

30 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed

31 Obtaining property by deception 2 months’ imprisonment Half a month on count 29 and on all other sentences imposed

34 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed

This amounted to a total effective sentence of 12 months. His Honour ordered that 8 months of that sentence be suspended for a period of…

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.

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Details

Case: [2009] VSCA 231
Decision Date: 9 October 2009

CaseChat Overview and Summary

The case of R v Bac Ai Nguyen Vu involved the applicant, who had pleaded guilty to two counts of obtaining property by deception and was found guilty by a jury of five counts of handling stolen goods and one count of obtaining property by deception. The offences arose from a single act of receiving stolen goods and multiple acts of selling those stolen goods. The applicant sought leave to appeal against the sentences imposed by the trial judge, arguing that the sentences were excessive and constituted double punishment. The appeal centred on whether the sentences imposed on the applicant required to be proportionate to the number or value of the goods subject of the counts.

The central legal issue before the court was whether the sentences imposed by the trial judge were appropriate, considering the nature of the offences and the need for proportionality. The applicant argued that the sentences imposed constituted double punishment, as they were based on both the act of receiving the stolen goods and the subsequent acts of selling those goods. The applicant contended that the sentences should be proportionate to the number or value of the goods subject of the count, rather than being based on each individual act. The prosecution, on the other hand, argued that the sentences were appropriate and reflected the seriousness of the offences committed by the applicant.

In allowing the appeal and granting leave to appeal, the court found that the sentences imposed by the trial judge were excessive and not proportionate to the number or value of the goods subject of the counts. The court noted that the applicant had no prior convictions, a good work record, good prospects of rehabilitation, had made reparations, and was unable to pursue a career due to the sentences imposed. The court concluded that the sentences were not appropriate and re-sentenced the applicant, taking into account the mitigating factors presented. The court found that the sentences should be proportionate to the number or value of the goods subject of the count, rather than being based on each individual act.

The final orders of the court were that the application for leave to appeal was granted, the appeal was allowed, and the applicant was re-sentenced. The court emphasised the importance of proportionality in sentencing and highlighted the mitigating factors that should be considered when determining an appropriate sentence. The court's decision in this case provides guidance to trial judges and practitioners on the principles of proportionality in sentencing and the factors that should be taken into account when determining an appropriate sentence.

Orders