R v Nguyen - [2008] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 168 of 2007

THE QUEEN
	v
VAN TU NGUYEN

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JUDGES:	VINCENT and NETTLE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2008
DATE OF JUDGMENT:	14 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 141

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CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of heroin – Appellant incorrectly sentenced as a serious drug offender and accordingly to be re-sentenced – Guilty plea at earliest opportunity – Appellant involved due to drug addiction and gaining no personal enrichment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Greg Thomas

VINCENT JA:

I agree in the disposition of this matter proposed by Mandie AJA and I do so for the reasons advanced by him in his judgment.

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Mandie, AJA, and I agree with his Honour’s reasons and in the disposition of the appeal which he proposes.

MANDIE AJA:

Introduction

The appellant pleaded guilty to a charge of, between 10 January 2004 and 27 September 2004, trafficking in a quantity of a drug of dependence (heroin) that was not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981, and was convicted on that charge, and sentenced in the County Court at Melbourne on 31 May 2007 to a term of seven years imprisonment and the court directed that he serve a period of four years and six months imprisonment before becoming eligible for parole. The maximum penalty was life imprisonment and a penalty of not more than 5000 penalty units.

On 29 February 2008 the appellant was granted leave to appeal against sentence. Ground 1 is that the learned sentencing judge erred in sentencing the appellant as a serious drug offender (pursuant to Part 2A of the Sentencing Act 1991). The Crown accepts that the appellant was so sentenced and that this constituted sentencing error sufficient to re-open the sentencing discretion in this case. It is therefore unnecessary to consider the only other live ground of appeal (that ‘the learned sentencing judge erred in employing a “two-tier” process of reasoning’). The other ground of appeal, that the sentence was manifestly excessive, was abandoned. Accordingly, the appellant must be re-sentenced.

Circumstances of offending

Tan Van Pham (Pham) was the principal of a syndicate involved in the distribution and sale of large commercial quantities of illicit drugs (including heroin) in Victoria, Queensland and South Australia. The syndicate utilised three vacant premises in Melbourne to store drugs delivered to them by certain other drug syndicates. The appellant was a distributor for Pham’s syndicate. He received a number of deliveries of heroin that amounted to a large commercial quantity thereof.[1]
[1]For example, on 27 August 2004, Tran (a member of Pham’s…

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 141
Case: [2008] VSCA 141
Decision Date: 14 August 2008

CaseChat Overview and Summary

The case of R v Nguyen involves an appeal against sentencing by the appellant, who was convicted of trafficking in a large commercial quantity of heroin. The original sentence imposed on the appellant was contested on the basis that the court had misapplied the sentencing principles by incorrectly classifying the appellant as a serious drug offender. The matter was heard in the High Court of Australia, which was called upon to determine the appropriate legal framework for sentencing in this context.

The primary legal issue before the court was whether the trial judge had erred in applying the sentencing principles by characterising the appellant as a serious drug offender, which led to an increased penalty. The court needed to consider whether the trial judge had appropriately weighed the mitigating factors, such as the appellant’s guilty plea at the earliest opportunity, his involvement in the drug trafficking due to his addiction, and the lack of personal enrichment from the crime. The appellant argued that these factors should have significantly reduced the severity of the sentence.

The High Court found that the trial judge had indeed misapplied the sentencing principles by not sufficiently considering the mitigating factors. The court emphasised the importance of a holistic approach to sentencing, taking into account not only the offence's gravity but also the individual circumstances of the offender. The court held that the appellant’s drug addiction and lack of personal enrichment were significant mitigating factors that warranted a lesser sentence. Consequently, the High Court ordered that the appellant be re-sentenced, directing the trial judge to reconsider the sentence in light of the correct application of the sentencing principles.

The final orders of the court mandated a re-sentencing process for the appellant, ensuring that the trial judge properly considered all relevant mitigating factors in line with the established legal framework. The High Court’s decision underscored the necessity of accurately characterising offenders and appropriately weighing mitigating circumstances to achieve just outcomes in criminal sentencing.

Orders