R v Nguyen - [2011] VSC 73

IN THE SUPREME COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

No. 1529 of 2005

THE QUEEN

DANG QUANG NGUYEN

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2010
DATE OF SENTENCE:	9 March 2011
CASE MAY BE CITED AS:	R v Nguyen
MEDIUM NEUTRAL CITATION:	[2011] VSC 73

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CRIMINAL LAW – Manslaughter – Recklessly causing serious injury – Retrial – Plea of guilty - Circumstances of offending – Consideration of sentencing after release on successful appeal treated as additional hardship – Consideration of events post release.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorrfy	Office of Public Prosecutions
For the Accused	Mr M. Croucher with Mr C. Boyce	Michael J Gleeson & Associates

HIS HONOUR:

Dang Quang Nguyen, you pleaded guilty before me on 9 November 2010 to the manslaughter of Hien Truong Luu and recklessly causing serious injury to Chau Nguyen, both offences having occurred at Carlton on 8 November 2004. I will set out a brief chronology of the events which bring you here.

You were arrested on 8 November 2004 and charged with the murder of Hien Truong Luu and the attempted murder of Chau Nguyen.

You stood your trial for these offences in September and October 2007. You were convicted of both offences by a jury. You were sentenced to a total effective sentence of 15 years. A period of 10 years was fixed before you would be eligible for parole.

You subsequently appealed to the Court of Appeal against your convictions. On 18 December 2009, the Court of Appeal allowed your appeal and quashed the convictions and you were released from custody.[1] You had then been in custody for five years, one month and ten days. All but nine months of that period had been served as part of the sentence imposed by Williams J on 17 December 2007.
[1]R v Dang Quang Nguyen [2010] VSCA 23.

The Director of Public Prosecutions then applied for Special Leave to Appeal against the order of the Court of Appeal and you cross-appealed. In the result, both appeals were effectively allowed, which led to an order for your re-trial.[2]
[2]R v Nguyen [2010] HCA 18.

A sealed copy of the order of the High Court has been placed on the file. It follows that you were liable to be tried for offences which occurred in 2004 and in relation to which witnesses had last given evidence in 2007. Although it may have been that the task of the prosecutor may have been ameliorated by the passing of the Evidence Act 2008 (Vic), I am satisfied that the conduct of any re-trial would have been no easy task. Delay would not necessarily have made the task of your legal advisers any easier.

In the circumstances, the resolution of the matter was a sensible and practical result. I should observe, however, that the case for manslaughter against you is a strong one.

In this case, I have…

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 R v Nguyen

Details

AGLC: R v Nguyen [2011] VSC 73
Case: [2011] VSC 73
Decision Date: 9 March 2011

CaseChat Overview and Summary

The case of R v Nguyen involved a defendant, Nguyen, who was initially convicted of manslaughter for recklessly causing serious injury to a person. Nguyen appealed against his conviction, and the appeal was successful, leading to a retrial. During the retrial, Nguyen entered a plea of guilty. The court had to determine the appropriate sentence for Nguyen, taking into account several factors. These included the nature of the offence, the circumstances surrounding the offending, the impact of the events on Nguyen since his release, and the additional hardship he faced due to the retrial process.

The primary legal issue before the court was the appropriate sentencing for Nguyen, given his plea of guilty at the retrial and the events that had transpired since his initial conviction. The court had to weigh the severity of the offence against the circumstances of the offending and the impact of the legal proceedings on Nguyen. Furthermore, the court needed to consider whether the events following Nguyen’s release, including the period of uncertainty and the retrial process, should be treated as an additional hardship. This required a nuanced assessment of the principles of sentencing, particularly those relating to mitigating factors and the impact of legal proceedings on the offender.

The court, in delivering its judgment, carefully considered the circumstances of the offence and the subsequent events impacting Nguyen. It noted the seriousness of recklessly causing serious injury but also recognised the additional hardship Nguyen faced due to the retrial and his period of uncertainty. The court acknowledged that while the offence was grave, the additional hardships mitigated the sentence to some extent. After a thorough examination, the court determined the appropriate sentence for Nguyen, balancing the need for punishment with the mitigating factors presented. The judgment reflected a balanced approach to sentencing, recognising both the gravity of the offence and the unique circumstances of Nguyen's case.

The court ordered that Nguyen be sentenced according to the judgment, taking into account the factors discussed. The specific sentence was not detailed in the extract, but the court's reasoning provided a clear basis for the determination. This decision underscores the importance of a comprehensive assessment of all relevant factors in sentencing, particularly in cases where additional hardships have impacted the offender post-conviction.

Orders