R v Nguyen - [2000] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 270 of 1999

THE QUEEN
	v.
SANG ANH NGUYEN

No. 280 of 1999

THE QUEEN

DIEP DUC NGUYEN

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JUDGES:	PHILLIPS, C.J., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2000
DATE OF JUDGMENT:	1 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 223

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CRIMINAL LAW – Sentence – Armed Robbery – No obligation to warn at possible imposition of sentence other than that sought by counsel – Judge open to observe that “serious example” of armed robbery – Parity between co-offenders – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Sang Anh Nguyen	Mr M. Croucher	Secombs
For the Applicant Diep Duc Nguyen	Mr R.J. Bourke	Clarebrough Pica

PHILLIPS, C.J.:

The appellants, Diep Duc Nguyen and Sang Ang Nguyen, who are aged 32 and 26 respectively, pleaded guilty in the County Court at Melbourne on 10 October 1999 to a presentment containing two counts of armed robbery. These offences, which carried maximum penalties of 25 years’ imprisonment were both committed at Melbourne on 18 August 1998. The victims were two women who worked at a Chinese restaurant, part of the Casino complex, and the offences were committed in the early hours of the morning close to their place of employment. The appellant Diep (“Diep”) had no prior convictions and the appellant Sang (“Sang”) admitted two drug related convictions in July 1998 for which he was placed on a Community Based Order and a further finding of guilt of an offence of dishonesty in August 1996 for which he received an adjourned good behaviour bond.

After pleas for leniency in which the learned judge received some viva voce evidence, the appellants were sentenced on 19 October 1999. Diep was sentenced to be imprisoned for three years on each count making for a total effective sentence of three years and his Honour fixed a non-parole period of 18 months. Sang was sentenced to be imprisoned for four years on each count making for a total effective sentence of four years’ imprisonment and his Honour fixed a non-parole period of two years. Both appellants later lodged notices of application for leave to appeal against sentence pleading the ground that their sentences were manifestly excessive and in June last the learned Registrar granted Diep leave to amend his grounds by adding two additional ones, and I now quote:

“2.The learned sentencing judge erred in characterising the applicant’s conduct as a serious example of the offence of armed robbery (p. 47-8)
3.The learned sentencing judge erred in failing to warn the applicant that he was considering imposing other than a suspended period of imprisonment notwithstanding the submission as to sentence by the Crown.”

In like manner Sang was granted leave to add:

“2. Given the indication of the prosecutor that “a term [of imprisonment] with a partial suspension which would not require immediate return to gaol…

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 [2000] VSCA 223
Case: [2000] VSCA 223
Decision Date: 1 December 2000

CaseChat Overview and Summary

In the case of R v Nguyen, the appellant was convicted of armed robbery. The sentence was appealed on the grounds that the sentencing judge failed to warn the appellant that the sentence might be greater than that sought by counsel, and that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge's failure to warn the appellant that the sentence might exceed that sought by counsel rendered the sentence invalid, and whether the sentence imposed was manifestly excessive.

The court found that there is no legal requirement for a trial judge to warn an appellant that the sentence might be greater than that sought by counsel, as long as the sentence is within the statutory maximum. The court also found that the sentence imposed was not manifestly excessive, as the trial judge had appropriately considered the appellant's role in the crime and the need to deter similar offences. The court noted that the appellant was one of several co-offenders, and that the sentence imposed was appropriate in light of the appellant's role and the need to achieve parity between co-offenders. The court found that the trial judge had appropriately exercised their discretion in imposing the sentence.

The appeal was dismissed, and the sentence imposed by the trial judge was upheld. The court found that the trial judge had appropriately considered all relevant factors in imposing the sentence, and that the sentence was not manifestly excessive. The court noted that the sentence imposed was appropriate in light of the appellant's role in the crime, and the need to deter similar offences in the future. The sentence imposed by the trial judge was therefore upheld, and the appeal was dismissed.

Orders