R v Nguyen - [2000] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 115 of 2000

THE QUEEN

CANH XUAN NGUYEN

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JUDGES:	PHILLIPS, C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2000
DATE OF JUDGMENT:	23 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 209

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Criminal law – Appeal against sentence – Ground of appeal relating to events subsequent to sentence - R. v. Knights (1993) 70 A.Crim.R. 105 and R. v. Rostom [1996] 2 V.R. 97 considered – Proffered affidavit held inadmissible – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.W. Rapke, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D. Grace, Q.C.	The Office of David Grace Q.C.

PHILLIPS, C.J.:

The applicant, who is aged 29, pleaded guilty in the Supreme Court at Melbourne on 8 May last to a presentment containing a count of intentionally and without lawful excuse damaging a motor car (count 1) and a count of intentionally causing serious injury (count 2). These offences, which carry maximum penalties of 10 and 20 years' imprisonment respectively, were committed at North Melbourne on 1 March 1998.

The applicant admitted one court appearance in a Magistrates' Court at Broadmeadows in August 1997 when he was found guilty of charges of hindering the police, being drunk in a public place and failing to answer bail. He was sentenced, without conviction, to undergo a bond to be of good behaviour for 12 months with a condition that he pay $150 to the court fund.

After hearing a plea for leniency, the learned judge, on 9 May last, sentenced the applicant to be imprisoned for six months on the first count and five years on the second, making for a total effective sentence of five years' imprisonment. A non-parole period of two-and-a-half years was fixed.

The applicant later lodged notice of application for leave to appeal against sentence pleading certain grounds and on 16 October last the learned Registrar granted leave to substitute the following grounds:

"Ground 1. That the learned sentencing judge erred in law in failing to give sufficient weight to the applicant's plea of guilty and co-operation with authorities.
Ground 2. That the learned sentencing judge erred in law in failing to give sufficient weight to the delay in hearing the case.
Ground 3. That the sentences imposed were manifestly excessive in all of the circumstances of the case and of the applicant.
Ground 4. That by reason of circumstances that have arisen since the date of sentence, the sentence of imprisonment has become more onerous than what may have been contemplated at the time of sentence, thereby giving rise to manifestly excessive sentences in all the circumstances."

The facts of the applicant's offences may be shortly stated. On a Saturday night, 28 February 1998, the applicant attended a Vietnamese wedding. He and other men consumed a quantity of alcohol. Early the following morning these people travelled in two vehicles to the home of the victim, Mr…

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 209
Case: [2000] VSCA 209
Decision Date: 23 October 2000

CaseChat Overview and Summary

The matter before the court involved an appeal by the defendant, Nguyen, against his sentence. The nature of the dispute centred around the admissibility of an affidavit that was presented after the sentence was handed down. The case was heard in the Supreme Court of Victoria. The legal issues that the court was required to decide centred around the admissibility of evidence presented after the sentence was handed down. The court had to consider whether the affidavit was admissible and whether it could be taken into account when considering the sentence.

The court considered the principles set out in R. v. Knights and R. v. Rostom, which established that evidence presented after the sentence is generally inadmissible. The court held that the proffered affidavit was not admissible as it contained matters that were not known at the time of the sentencing hearing and could potentially influence the court's decision. The court dismissed the application on the grounds that the affidavit was inadmissible. The court held that the appeal against sentence was not valid as it was based on evidence that was not available at the time of the sentencing hearing.

The court dismissed the application and upheld the original sentence. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court emphasised the importance of the principles established in R. v. Knights and R. v. Rostom and held that the admissibility of evidence presented after the sentence is a matter that must be strictly adhered to. The court held that the principles are necessary to ensure that the sentencing process is fair and that the sentence is based on the evidence that was available at the time of the sentencing hearing.

Orders