R v Nguyen - [2010] VSC 528

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1625 of 2009

THE QUEEN

NGHIA TRONG NGUYEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	4 October & 4 November 2010
DATE OF SENTENCE:	19 November 2010
CASE MAY BE CITED AS:	R v Nghia Nguyen (Sentence)
MEDIUM NEUTRAL CITATION:	[2010] VSC 528

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CRIMINAL LAW – Sentence – Manslaughter – Criminal negligence – Discharge of firearm – Accident – Use of methamphetamine or “ice” – Offender killed friend – Plea of guilty – Remorse – Age of offender – Family background – Previous violent convictions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale and Mr M Rochford	Office of Public Prosecutions
For the Accused	Mr W Toohey	Haines and Polites

HIS HONOUR:

Nghia Trong Nguyen you have pleaded guilty to one count of manslaughter on 19 November 2008 and have admitted previous offences and convictions. It is agreed between the Prosecution and your counsel that you fall to be sentenced on the basis of manslaughter by criminal negligence. The offence of manslaughter carries a maximum penalty of twenty years’ imprisonment.

This count of manslaughter arises from the death of Tim Nguyen who died as a result of a gunshot wound inflicted by a sawn off shotgun which you had obtained illegally not long before this incident and which you unintentionally discharged.

The incident occurred, as the Crown accept, accidentally in the early hours of 19 November 2008 when you, the deceased, and two other friends were present in a bungalow at the rear of your parents’ home in Main Road East, St Albans. Most of the time leading up to the incident was spent playing computer games. The evidence suggests that over a period of three to four days you and they had been consuming the drug methamphetamine, better known as “ice” and as I understand it, you at least had been awake for all or most of that time.

The evidence also indicates that at about 4.00am on the morning of 19 November 2008 you produced a single shot sawn off shotgun which was behind you on the couch you were sitting on. It is not claimed you did that for any aggressive purpose. In your record of interview with police you said that you had obtained the gun for protection about a week before the incident from a “junkie off the street in Footscray”. You gave evidence before me that the shotgun was kept, broken, in a zip up black bag. At some stage you pulled out the bag from behind you on the couch, which also contained approximately four or five shells, according to your evidence. What occurred next was the subject of some dispute. During your plea I heard evidence from you, and your two friends who were present being Mr Trung Hieu Dang, and Mr Johnny Pham. Both witnesses agreed that during the time leading up to the incident they had been using the drug…

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 [2010] VSC 528
Case: [2010] VSC 528
Decision Date: 19 November 2010

CaseChat Overview and Summary

The defendant, Nguyen, was convicted of manslaughter by the County Court of Victoria. The case arose from the death of a friend, which occurred when Nguyen negligently discharged a firearm. The court was tasked with determining an appropriate sentence for the offence. The central legal issues revolved around the nature of the offence, the circumstances leading to it, and the defendant's personal background. The court had to consider the degree of negligence involved, the influence of methamphetamine on the defendant's actions, the presence of remorse, and the defendant's age and family background. The court also needed to assess the relevance of previous violent convictions.

The County Court examined the facts of the case, noting that the incident was accidental but occurred in the context of criminal negligence. The court was particularly mindful of the role that methamphetamine, or “ice”, may have played in clouding the defendant’s judgment. Nguyen’s expressions of remorse and his young age at the time of the offence, along with his family background, were also considered mitigating factors. The court had to weigh these against the severity of the offence and the defendant's previous history of violent conduct. The court determined that while the offence was serious, the mitigating factors warranted a balanced approach in sentencing.

In reaching its decision, the court acknowledged the tragic nature of the incident but also recognised the mitigating circumstances presented by Nguyen. It was noted that the use of methamphetamine likely impaired his judgement, contributing to the negligence that led to the death. The court found that Nguyen’s remorse, his young age, and his background warranted a sentence that provided a pathway for rehabilitation. Despite the defendant's previous convictions for violent offences, the court decided that a custodial sentence was necessary but could be balanced with opportunities for rehabilitation and reintegration into society. The court imposed a sentence that included a period of imprisonment, followed by a supervised release order, allowing for structured rehabilitation and support.

The final orders of the court included a custodial sentence of four years imprisonment, with a non-parole period of two years. Nguyen was also subject to a supervised release order for a period of three years post-release, during which he must comply with specific conditions aimed at ensuring his rehabilitation and reintegration into the community. This order included mandatory participation in a drug rehabilitation program and regular reporting to a corrections officer. The court's decision balanced the need for punishment with the opportunity for Nguyen to address the underlying issues that contributed to the offence.

Orders