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R v Nguyen

R v Nguyen

Case [2007] VSCA 165 23 August 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
THE QUEEN	No. 194 of 2006
v
TRUNG VAN NGUYEN
THE QUEEN
THE QUEEN	No. 197 of 2006
v
TAM VAN NGUYEN
THE QUEEN
THE QUEEN	No. 206 of 2006
v
XUAN PHO PHAM

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JUDGES:	BUCHANAN, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2007
DATE OF JUDGMENT:	23 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 165

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Criminal Law – Sentencing – Trafficking in a drug of dependence (heroin) in a commercial quantity or a large commercial quantity – Sentences of between seven and nine years’ imprisonment – Whether sentences manifestly excessive when regard had to mitigating factors including nature of dealing, youth, addiction, admissions and early guilty pleas – Whether a specific error with respect to forfeiture of vehicle – Parity – Appeal allowed – Appellants re-sentenced to periods of imprisonment ranging from five years to six years two months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Xuan Pho Pham	Ms F L Dalziel	Clarebrough Pica
For the Applicant Tam Van Nguyen	Ms S F Thomas	Dowling McGregor Thomas Solicitors
For the Applicant Trung Van Nguyen	Mr C B Boyce	Victoria Legal Aid

BUCHANAN JA:

I agree with Neave JA that the applications for leave to appeal against sentence should be allowed and the appellants re-sentenced as her Honour proposes.

ASHLEY , JA:

I agree with Neave JA.

NEAVE, JA:

The applicants, together with Yen Van Nguyen, sold heroin to users in Richmond and the northern suburbs of Melbourne in 2004 and early 2005. After a police operation involving under-cover agents, surveillance and telephone intercepts, they were charged with various offences.

Xuan Pham and Tam Van Nguyen pleaded guilty to trafficking in a drug of dependence (heroin) of not less than a large commercial quantity. Tam Van Nguyen also pleaded guilty to handling stolen goods. Trung Van Nguyen pleaded guilty to trafficking in a drug of dependence (heroin) of not less than a commercial quantity. On 27 June 2006, the applicants were sentenced to terms of imprisonment ranging from seven to nine years.[1] Each applicant now seeks leave to appeal against the sentence imposed on him.
[1]The non-parole periods ranged from four and a half years to six and half years.

The youngest of the Nguyen brothers, Yen Van Nguyen, aged 20 at the time of the offence, also pleaded guilty to trafficking in a commercial quantity of a drug of dependence (heroin). He was sentenced to a term of five years’ imprisonment.[2] He does not seek leave to appeal against that sentence.
[2]With a non-parole period of three years.

The circumstances in which these offences were committed and the sentences imposed on each applicant are set out below.[3]
[3]These facts were taken primarily from the statement of agreed facts prepared for the plea hearing on 22 June 2006.

Background

The three Nguyen brothers became addicted to heroin in their early teens. Xuan Pham later became…

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 [2007] VSCA 165
Case: [2007] VSCA 165
Decision Date: 23 August 2007

CaseChat Overview and Summary

The case of R v Nguyen involved two appellants, who were convicted of trafficking in a drug of dependence, specifically heroin, in commercial quantities. The case was heard and determined by the Court of Appeal. The appellants appealed against their sentences, arguing that they were manifestly excessive given the mitigating factors presented, such as the nature of their involvement in the drug trade, their youth, addiction, admissions of guilt, and early pleas of guilt. They also argued that there was a specific error regarding the forfeiture of one of the appellants' vehicles.

The court was tasked with determining whether the sentences imposed were manifestly excessive in light of the mitigating factors. Additionally, the court had to consider whether there was an error with respect to the forfeiture of the vehicle and whether the sentences were disproportionate in comparison to similar cases, ensuring parity in sentencing. The appellants' legal team argued that the sentences should be reduced to reflect the significant mitigating factors and correct any procedural errors.

The court found that the original sentences were indeed manifestly excessive when considering the totality of the mitigating factors. The court noted that while the offence was serious, the appellants' youth, addiction, admissions, and early pleas of guilt were significant mitigating factors that warranted a reduction in sentence. The court also found that there was a specific error regarding the forfeiture of the vehicle, which needed to be corrected. Taking these factors into account, the court allowed the appeal and re-sentenced the appellants to periods of imprisonment ranging from five years to six years and two months. This decision ensured that the sentences were proportionate to the offence and reflected the mitigating circumstances.

Orders