R v Nguyen - [2001] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 199 of 2000

THE QUEEN
	v.
THAI NGUYEN

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JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2001
DATE OF JUDGMENT:	9 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 139

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Criminal Law - Sentence - Sexual penetration of boy aged between 10 and 16 - Use of the Internet to procure meeting - Applicant aged 23 and victim 14 - Trial judge erred in holding active consent and provocative behaviour by victim were entirely irrelevant for sentencing purpose - Sentencing discretion reopened and exercised by the Court - Policy of legislation to protect children, young adolescents - Victim's conduct taken as a mitigating factor - Fully suspended two years' imprisonment on each count ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Solicitor for Public Prosecutions
For the Applicant	Mr R.J. Williams	Michael J. Amad Pty.

CALLAWAY, J.A.: I shall invite Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

The applicant, Thai Nguyen, who is now aged 25, pleaded guilty in the County Court at Melbourne on 24 July 2000 to a presentment containing two counts of taking part in an act of sexual penetration with a child aged between 10 and 16 contrary to s.46(1) of the Crimes Act 1958. The maximum penalty for this offence is 10 years' imprisonment. The acts of offending occurred on 9 September 1999 when the applicant was 23 years of age and the victim was aged 14. The applicant had first entered a plea of guilty to both charges at the committal stage on 26 April 2000. The matter was then set down for hearing as a plea of guilty in the County Court and the applicant was released on bail. He has no prior convictions. After hearing a plea for leniency made on his behalf, the learned sentencing judge sentenced the applicant on 28 July 2000 to a term of two years' imprisonment on each count and ordered that six months of the second count be cumulated upon the sentence in respect of the first count, thereby imposing a total effective sentence of two years and six months' imprisonment. The sentencing judge also ordered that 21 months of the sentence be suspended for a period of two years.

On 2 August 2000, the applicant lodged a notice of application for leave to appeal against sentence and, on 1 September 2000, by an order of this Court was released on bail. The applicant has served 37 days, including today, of his sentence in prison.

Before considering the grounds on which the applicant relies in support of his application, I will set out the personal circumstances of the applicant and the circumstances relating to his offending. The applicant was born in Vietnam on 7 January 1976. Because of the war and its aftermath, the applicant never knew his father who died when he was approximately three years old. Ultimately, the applicant and his mother migrated to…

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 [2001] VSCA 139
Case: [2001] VSCA 139
Decision Date: 9 August 2001

CaseChat Overview and Summary

The case of R v Nguyen was heard in the High Court of Australia, where the appellant was convicted of two counts of sexual penetration of a boy aged between 10 and 16. The appellant, a 23-year-old man, had used the internet to arrange meetings with a 14-year-old boy for the purpose of engaging in sexual activities. The primary issue before the court was whether the trial judge had erred in their consideration of the victim’s consent and conduct during sentencing, and if so, whether this warranted a reopening of the sentencing discretion.

The court determined that the trial judge had indeed erred in their assessment of the relevance of the victim's active consent and provocative behaviour, which they had deemed entirely irrelevant for sentencing purposes. The court held that these factors, while not excusing the appellant's criminal conduct, could be considered as mitigating elements in the sentencing process. The legislation’s intent to protect children and young adolescents necessitated a balanced approach that recognised the victim's conduct as a mitigating factor, thereby impacting the severity of the sentence. The court’s interpretation underscored the importance of considering the broader policy objectives of the legislation in criminal sentencing.

Consequently, the High Court reopened the sentencing discretion and exercised it by imposing a fully suspended two-year imprisonment on each count against the appellant. This decision emphasised the need for a nuanced approach in sentencing that appropriately weighs the circumstances of the victim alongside the gravity of the offence. The court’s ruling was guided by the overarching legislative aim to safeguard children and young adolescents, ensuring that the sentencing process reflected both the protection of victims and the rehabilitation of offenders.

Orders