R v Nguyen - [2006] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 237 of 2005
THE QUEEN	v.
HIEU HUU NGUYEN

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JUDGES:	WARREN, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2006
DATE OF JUDGMENT:	14 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 39

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CRIMINAL LAW – Sentence – Affray – Attempting to cause serious injury – Offenders armed with Samurai swords – Hand amputated during affray – Attacker causing amputation receiving lesser sentence, although uninjured – Disparity – Imprisonment more burdensome – Sentence not manifestly excessive – Control of Weapons Act 1990 (Vic.) ss.5(1), 6(1) – Crimes Act 1958 (Vic.) s.31B – Control of Weapons Regulations 2000.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Ms F. Dalziel	Pro Bono

WARREN, C.J.:

I invite Charles, J.A. to state his reasons for judgment first.

CHARLES, J.A.:

The applicant pleaded guilty on 25 July 2005 in the County Court at Melbourne to a presentment alleging one count of affray (count 1) and one count of attempting to cause serious injury intentionally (count 3). The maximum penalties were, for affray, five years' imprisonment and for attempting to cause serious injury intentionally, 15 years' imprisonment, respectively. The applicant admitted 15 prior convictions from four previous appearances in the Magistrates' Court, including five charges of trafficking in heroin, one further charge of trafficking in a drug of dependence, and one charge of being found without lawful excuse in possession of a controlled weapon.

On 8 August 2005, the judge sentenced the applicant on the count of attempting to cause serious injury intentionally to 18 months' imprisonment and on the count of affray to 15 months' imprisonment. Six months of the sentence imposed on the count of affray was made cumulative on the other sentence, making a total effective sentence of two years' imprisonment. The judge fixed a non-parole period of nine months.

The applicant now seeks leave to appeal on the grounds -

“1.The sentence imposed upon him was disproportionate to that imposed upon the co-offender Tuan Mai, having regard to the principle of parity;
2.The judge failed to give sufficient weight to mitigating factors associated with the applicant's injury, in particular -
(a)the serious permanent consequences of the injury;
(b)the additional burden of imprisonment by reason of the injury;
(c)that imprisonment would have an adverse effect on the applicant's health.”

The Crown prosecutor opened the case to the sentencing judge in the following terms. During February 2004, a 17-year-old youth, Hai Nguyen, who was part of a group known as "Little Fitzroy", and another male, Viet Quoc Nguyen, who was part of a second group known as "SNK", were in conflict because Viet had been making advances to Hai's girlfriend, Tiffani. This conflict grew to include other members of both groups. On the evening of 21 February the applicant, who was part of the SNK group, and Tuan Mai, who was part of the "Old Fitzroy" group,…

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 [2006] VSCA 39
Case: [2006] VSCA 39
Decision Date: 14 February 2006

CaseChat Overview and Summary

In the matter of R v Nguyen, the Victorian Court of Appeal reviewed the sentencing of two individuals involved in an affray that resulted in serious injury. The dispute arose from a physical altercation during which the accused, one of whom had his hand amputated due to injuries sustained, attacked another individual armed with a Samurai sword. The Court of Appeal was tasked with determining whether the sentences imposed were appropriate and whether any disparity in sentencing was justified. The legal issues centred on the appropriate application of the Control of Weapons Act 1990 (Vic.) and the Crimes Act 1958 (Vic.), alongside the Control of Weapons Regulations 2000, in sentencing the offenders. The Court considered the severity of the crimes, the role of each offender, and the proportionality of their sentences.

The Court of Appeal held that the sentences were not manifestly excessive and were proportionate to the gravity of the offences. The Court acknowledged the significant disparity in the sentences imposed on the two offenders but found that this was justified due to the differences in their roles and the extent of their injuries. The offender who had his hand amputated was sentenced to a lesser term of imprisonment compared to the offender who caused the amputation but remained uninjured. The Court reasoned that imprisonment is a more burdensome punishment for the uninjured offender, thus justifying the disparity in their respective sentences. This approach was consistent with statutory provisions and previous judicial precedents.

Ultimately, the Court of Appeal dismissed the appeal against sentence, confirming that the original sentencing was appropriate. The Court emphasised that the disparity in sentences, while notable, was not unjust given the circumstances of the case and the legislative framework governing such offences. The Court of Appeal's decision reinforces the principle that sentencing should reflect the unique aspects of each case, including the nature of the offence, the role of each participant, and the impact of their actions on the victims.

Orders