R v Nguyen - [2005] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 258 of 2004

THE QUEEN
	v.
THANH CONG NGUYEN

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2005
DATE OF JUDGMENT:	3 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 40

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Criminal law – Sentence – Trafficking in a drug of dependence (heroin) – Parity – Co-offender sentenced in Magistrates' Court – Low level street trafficking – Sentence of 18 months' imprisonment with nine months non-parole period not disturbed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr A.J. Palmer	Lethbridges

CALLAWAY, J.A.:

I shall ask Eames J.A. to deliver the first judgment.

EAMES, J.A.:

This is an application for leave to appeal against sentence, the applicant having elected to apply for leave to appeal to a court of three, after leave was refused by a judge of this court pursuant to s.582 of the Crimes Act 1958.

The applicant pleaded guilty in the County Court to one count of trafficking in a drug of dependence, namely heroin, between 7 July 2002 and 1 November 2002. The applicant's offending had been discovered as a result of a large scale police investigation into two Vietnamese syndicates engaged in drug trafficking. Telephone interception revealed that the applicant and another person, Dinh Pham, made arrangements by telephone to meet drug users, to whom they sold heroin.

The learned sentencing judge concluded that it was not possible to accurately determine the quantity of the drug which had been trafficked, or the prices obtained for the sales by the applicant. In submissions to the judge, the prosecutor alleged that the applicant and Dinh Pham were first involved in purchasing heroin from two dealers for the purposes of further sale to street level heroin users. Although the applicant was dealing more frequently than Dinh Pham, they were both engaged at the same level, namely at low level street distribution. During submissions on sentence the prosecutor agreed with the judge that the level of dealing was in the order of purchasing from his supplier every few days, one or two grams of heroin for the purpose of resale.

The applicant was aged 47 at the time of sentencing and had no prior convictions.

On 30 September 2004, the County Court judge sentenced the applicant to 18 months imprisonment and ordered that he serve nine months before being eligible for parole.

On the application before us, complaint was not made that that sentence was manifestly excessive in itself. The sole complaint which was pursued was that the sentence offended the principle of parity when regard was had to the sentence which had been imposed on the co-offender, Dinh Pham.

The Office of Public Prosecutions elected to have Dinh Pham dealt with in the Magistrates' Court and on 13 November 2003 a Magistrate sentenced him to six months imprisonment, to be served by way of an intensive correction order.

The question…

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 [2005] VSCA 40
Case: [2005] VSCA 40
Decision Date: 3 March 2005

CaseChat Overview and Summary

In the matter of R v Nguyen, the appellant was convicted in the County Court for trafficking in heroin, a drug of dependence, and was sentenced to 18 months imprisonment with a non-parole period of nine months. The appellant, Nguyen, sought an appeal against the sentence imposed by the County Court. The legal issue before the Court of Appeal was whether the sentence was manifestly inadequate, particularly in light of the parity principle and the sentencing of a co-offender in the Magistrates' Court.

The Court of Appeal considered the principle of parity in sentencing, which requires that like cases be treated alike, and examined the circumstances of the co-offender's sentencing. The Court noted that the co-offender had been involved in low-level street trafficking and was sentenced to a term of imprisonment with a shorter non-parole period. The Court also considered the appellant's role in the offence, the gravity of the offence, and the need for general deterrence. The Court held that the sentence imposed was not manifestly inadequate, taking into account the principle of parity and the circumstances of the case.

The Court of Appeal dismissed the appeal against sentence, affirming the County Court's decision. The Court found that the sentence imposed was appropriate, considering the principle of parity, the appellant's role in the offence, and the need for general deterrence. The sentence of 18 months imprisonment with a nine-month non-parole period was upheld.

Orders