R v Nguyen - [2001] VSC 278

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1429 of 1999

THE QUEEN

DAT TUAN NGUYEN

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JUDGE:	Flatman J
WHERE HELD:	Melbourne
DATE OF SENTENCE:	10 August 2001
CASE MAY BE CITED AS:	R v Dat Tuan Nguyen
MEDIUM NEUTRAL CITATION:	[2001] VSC 278

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Sentence – manslaughter – criminal negligence – discharge of firearm whilst affected by alcohol in suburban residence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W. Morgan-Payler QC
For the Accused	Mr J. Montgomery

HIS HONOUR:

Dat Tuan Nguyen, you were presented in this court on a count that at Footscray in the State of Victoria, between 27 and 28 June 1998, you murdered Duc Doan Tran. The jury found you not guilty on that charge, but guilty on the alternative charge of manslaughter. Manslaughter was put to the jury in two ways, manslaughter by unlawful and dangerous act or manslaughter by criminal negligence.

The facts, in my view, supported a verdict by either route, and in terms of sentencing discretion, the culpability would, as Mr Morgan-Payler submitted, be much the same on either. Or the purpose of this sentence I am prepared to accept a submission by Mr Montgomery that the jury verdict was based on criminal negligence.

On the evening of 27 June, you had been drinking with friends and engaging in a karaoke night. The evidence suggests that you drank half a bottle of whisky prior to coming home and that you were adversely affected by alcohol. The fact that you were so affected was confirmed both by the evidence of your step-daughter, Amina Tran, and the way in which your case was presented to the jury. After going to buy some cigarettes, you smoked a cigarette and then went to the back of the house, between the shed and the neighbour's fence, and collected a shotgun you were keeping there. Your reason for such activity was that you wanted to clean the gun and in the future learn how to use it to go hunting with your friends. Although you professed ignorance of the precise nature of the gun, it would appear from your description that it was a sawn-off over and under shotgun. In your evidence at the previous trial you said that the deceased came into the kitchen and you were having a conversation with him. You said that you were seated on the floor, with the gun between your legs, with the muzzle pointing in an upwards direction and the deceased was bending towards you. In your words, you were fiddling with or cleaning the gun at the time.

The gun discharged, hitting Duc Doan Tran in the right chest just below the right shoulder. Within an hour he died from very severe wounds.

You then hid the shotgun, returning the following Monday to ultimately dispose of it in the sea at Altona.

When the police sought information from you, you misled them as to your role in the shooting. Your…

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 [2001] VSC 278
Case: [2001] VSC 278
Decision Date: 10 August 2001

CaseChat Overview and Summary

The case of R v Nguyen involved a defendant who had been charged with manslaughter by criminal negligence after discharging a firearm in a suburban residence while under the influence of alcohol. The court was tasked with determining the appropriate sentence for the defendant, who had pleaded guilty to the charge. The central issue before the court was the appropriate level of culpability and the appropriate penalty for the offence.

The court was required to consider the nature and circumstances of the offence, including the defendant's level of intoxication and the circumstances of the discharge of the firearm. The court also had to take into account the defendant's background and personal circumstances, including any mitigating factors that may have contributed to the offence. The court was further required to consider the principles of sentencing for manslaughter by criminal negligence, including the need for deterrence, denunciation, and rehabilitation.

In delivering its decision, the court found that the defendant's level of intoxication and the circumstances of the offence were significant factors in determining the appropriate sentence. The court found that the defendant's level of intoxication was a significant contributing factor to the offence, and that the circumstances of the discharge of the firearm, including the fact that it occurred in a suburban residence, were also significant. The court further found that the defendant's background and personal circumstances, including any mitigating factors, did not warrant a reduction in the level of culpability or the sentence. The court ultimately determined that the appropriate sentence for the defendant was a term of imprisonment, with a non-parole period that reflected the seriousness of the offence and the need for deterrence and denunciation.

Orders