R v Nguyen - [2008] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 309 of 2007

HAI MINH NGUYEN

No 313 of 2007

LANG DANG

No 316 of 2007

LIEN THUY LY

No 325 of 2007

HOA VAN NGUYEN

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JUDGES:	WARREN CJ, VINCENT and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2008
DATE OF JUDGMENT:	28 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 235

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CRIMINAL LAW – Appeal – Sentencing - Co-offenders with various roles in syndicate trafficking large commercial quantity of heroin – Whether mitigatory factors including delay, guilty pleas, remorse, depression, separation of parent from child appropriately weighed – Application of parity principle.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Ryan SC	Office of Public Prosecutions
For the Applicant Hai Minh Nguyen	Mr C B Boyce	Robert Stary and Associates
For the Applicant Lang Dang	Mr S R Johns	Balmer and Associates
For the Applicant Lien Thuy Ly	Mr O P Holdenson QC with Mr T Kassimatis	Valos Black and Associates
For the Applicant Hoa Van Nguyen	Mr J Dickinson SC	Parsons Solicitors

WARREN CJ:

I have read the draft judgment of Dodds-Streeton JA. For the reasons stated by her Honour, I would dismiss each of the applications for leave to appeal against sentence.

VINCENT JA:

I have read the judgment of Dodds-Streeton JA and I agree that each of the applications should be dismissed, for the reasons given by her Honour.

DODDS-STREETON JA:

There are four related applications for leave to appeal against the sentences passed on the applicants, Hai Minh Nguyen (‘Hai’), Lang Dang (‘Dang’), Lien Thuy Ly (‘Ly’) and Hoa Van Nguyen (‘Hoa’) for offences committed in the course of the activities of a heroin trafficking syndicate.

Hai was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence. He was sentenced to eight years’ imprisonment with a non-parole period of five years, and 129 days recognised as already served.

Dang was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence (count 1) and one count of trafficking in a drug of dependence (count 2). She was sentenced to 13 years’ imprisonment on count 1 and one year’s imprisonment on count 2, with a total effective sentence of 13 years, a non-parole period of nine years, and 394 days recognised as already served.

Ly was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence. She was sentenced to 13 years’ imprisonment with a non-parole period of nine years, and 54 days

recognised as already served.

Hoa was charged with, and pleaded guilty to, one count of trafficking in a commercial quantity of a drug of dependence. He was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months, and 52 days recognised as already served.

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 [2008] VSCA 235
Case: [2008] VSCA 235
Decision Date: 28 November 2008

CaseChat Overview and Summary

The case of R v Nguyen involved an appeal against sentencing by one of several individuals implicated in a syndicate trafficking large quantities of heroin. The appellant, a co-offender with a specific role in the syndicate, sought to challenge the sentence imposed by the lower court. The appeal was heard in the higher court where the appellant argued that the sentence was excessive and that the trial judge had not appropriately considered various mitigatory factors. These factors included the delay in bringing the case to trial, the appellant's guilty plea, expressions of remorse, the appellant's depression, and the impact of separating the appellant from his child.

The court was required to determine whether the trial judge had erred in assessing and weighing the mitigatory factors presented by the appellant. Additionally, the court needed to consider the principle of parity in sentencing co-offenders, ensuring that sentences were proportionate to the roles and culpability of each individual involved in the syndicate. The appellant argued that the trial judge had not adequately balanced these considerations, leading to an excessively harsh sentence.

In examining the appeal, the court reviewed the sentencing principles applicable to the appellant's circumstances. The court acknowledged the significant role of the appellant in the trafficking syndicate but also recognised the importance of considering individual mitigating factors. The court found that the trial judge had indeed considered the delay, guilty plea, and the appellant's expressions of remorse, but perhaps not to the extent argued by the appellant. However, the court ultimately concluded that the trial judge had appropriately balanced these factors against the severity of the crime and the need for deterrence and denunciation. The court also considered the principle of parity, finding that the sentence was commensurate with the appellant's role in the syndicate.

The appeal was dismissed, and the original sentence was upheld. The court determined that the trial judge had exercised sound judicial discretion in imposing the sentence, appropriately considering all relevant factors, including the mitigatory circumstances presented by the appellant. The court's decision reinforced the importance of a balanced approach in sentencing, recognising both the gravity of the crime and the individual circumstances of the offender.

Orders