R v Nguyen - [2009] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 810 of 2007

THE QUEEN
	v
DANG HAI NGUYEN

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JUDGES:	DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2009
DATE OF JUDGMENT:	2 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 64

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SENTENCING – Appeal – Attempted armed robbery – Error as to maximum penalty – Sentencing discretion reopened – Theft – Whether sentence for theft manifestly excessive – Length of minimum term – Young male offender with drug addiction – Rehabilitation prospects likely to be enhanced by supervision during parole period – Disqualification from obtaining driver licence – Punitive nature of disqualification order – Sentencing Act 1991 s 5(2)(b) – Road Safety Act 1986 s 89(4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr DA Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr LC Carter	Robert Stary & Associates

DODDS-STREETON JA:

I have had the benefit of reading in draft the reasons for judgment of Williams AJA. I agree with the disposition proposed by her Honour, for the reasons she gives.

WEINBERG JA:

I agree for the reasons given by Williams AJA that this appeal should be allowed, and the appellant re-sentenced in accordance with the orders proposed.

The error on the part of the sentencing judge as to the correct maximum penalty for the offence of attempted armed robbery is sufficient, in my view, to require the sentencing discretion to be re-opened.

I regard a sentence of three years’ imprisonment as appropriate for the primary offence. The appellant’s criminal history is significant, and there was little by way of mitigation presented on his plea. I also agree that a term of three months’ imprisonment is warranted for the offence of theft of the motor vehicle.

Given that the only reason that the vehicle was taken seems to have been so that the appellant could get to the automatic teller machine, where he proposed to carry out the armed robbery, the two offences are sufficiently linked to warrant some degree of concurrency. Indeed, the Crown all but conceded as much. For that reason, I would make two months of the three month term imposed on the count of theft concurrent with the three years fixed for the attempted armed robbery.

This adjustment to the total effective sentence requires a reconsideration of the non-parole period. I agree with Williams AJA that, given the appellant’s age, the fact that he has not previously had the opportunity of parole, and his prospects of rehabilitation, a non-parole period of two years is justified in this case.

There seems little point, in my view, in imposing a period of disqualification from obtaining a drivers licence, by reason of an offender having been convicted of theft of a motor vehicle, unless that disqualification operates to some degree, at least,

in a punitive fashion. For that reason, I consider that disqualification for a period that ends two months after the date upon which the appellant…

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 [2009] VSCA 64
Case: [2009] VSCA 64
Decision Date: 2 April 2009

CaseChat Overview and Summary

The appeal heard in the court involved the case of Nguyen, who was convicted of attempted armed robbery. Nguyen appealed against his sentence, claiming that the sentencing judge had made an error regarding the maximum penalty for attempted armed robbery and that the sentence imposed was manifestly excessive. The court was required to determine whether the sentence for the theft charge was manifestly excessive and to consider the appropriate length of the minimum term for the attempted armed robbery, given the offender's age, drug addiction, and prospects for rehabilitation.

The court found that the sentencing judge had indeed erred by not taking into account the maximum penalty for attempted armed robbery, which was higher than the penalty applied. This error warranted the reopening of the sentencing discretion. The court also found that the sentence for the theft charge was not manifestly excessive, given the circumstances of the case. However, the court considered the appropriate length of the minimum term for the attempted armed robbery, taking into account Nguyen's age, drug addiction, and prospects for rehabilitation. The court concluded that a sentence that included a period of supervision during parole would likely enhance the offender's prospects for rehabilitation.

The court further considered the disqualification from obtaining a driver's licence, noting that the punitive nature of the disqualification order was relevant under the Sentencing Act 1991 and the Road Safety Act 1986. The court determined that the disqualification order was appropriate, given the circumstances of the case. The appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

The final orders of the court included a remitted case for re-sentencing, with specific directions regarding the maximum penalty for attempted armed robbery and the appropriate length of the minimum term, taking into account the offender's age, drug addiction, and prospects for rehabilitation. The court also confirmed the appropriateness of the disqualification from obtaining a driver's licence.

Orders