R v Nguyen - [2000] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 185 of 1999

THE QUEEN

MANH TUAN NGUYEN

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JUDGES:	PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2000
DATE OF JUDGMENT:	20 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 189	(1st revision – 13 October 2000)

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Criminal law – Appeal against sentence – Allegation of manifest disparity with sentence on co-offender upheld – Exceptional assistance to authorities by appellant – Sentence reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.M. Horgan	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. D.B. Baker	Victoria Legal Aid

PHILLIPS, C.J.:

The appellant, who is aged 32, pleaded guilty in the County Court at Melbourne to a presentment containing one count of aggravated burglary (count 1) and one count of theft (count 2). These offences, which carried maximum penalties of 25 years' and 10 years' imprisonment respectively, were committed at St Albans on 15 February 1999.

The appellant admitted eight prior convictions from four previous court appearances between 1990 and 1998. His earlier prior convictions included three for theft and one for trafficking in a drug of dependence. In August 1998, at the Melbourne Magistrates' Court, he was convicted on a charge of recklessly causing serious injury arising out of a domestic dispute and ultimately received an intensive correction order by way of penalty, which order he was undergoing at the time of the commission of the instant offences. On 19 May 1999 the appellant, who was then on bail in relation to these offences, was sentenced to 132 days' imprisonment for breach of the intensive correction order.

In the course of a plea for leniency the learned judge heard viva voce evidence from a detective named Tulley, who spoke of the appellant surrendering himself, making admissions and assisting in the identification and apprehension of two co-offenders; the appellant's wife, who spoke of his history of drug addiction, a psychiatric admission and the availability of work for him on his release; and the appellant, who confirmed these matters and the contents of a statement he had made to the police on 19 February 1999. The appellant gave a sworn undertaking that he was prepared to give evidence at proceedings against his co-accused, named McKenzie and Johnston. The learned judge also received a bundle of documents tendered on the appellant's behalf.

On 24 August 1999 the appellant was sentenced to be imprisoned for three-and-a-half years on count 1 and one year on count 2, making for a total effective sentence of three-and-a-half years' imprisonment, which sentence was directed to be served cumulatively on the sentence he was then undergoing, namely, the sentence of 132 days' imprisonment. His Honour fixed a non-parole period of one year and eight months.

The appellant later lodged notice of application for leave to appeal against sentence, pleading the following grounds:

"1.The learned sentencing judge erred in that he failed to give sufficient weight to the applicant's co-operation and assistance…

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 189
Case: [2000] VSCA 189
Decision Date: 20 September 2000

CaseChat Overview and Summary

The appellant, Nguyen, was convicted of a criminal offence and sentenced to a particular term of imprisonment. The appellant appealed against the sentence on the grounds that it was manifestly disproportionate to the sentence of a co-offender who was involved in the same criminal activity. The appeal was heard in the Supreme Court of Victoria. The central issue before the court was whether the sentence imposed was manifestly disproportionate to the sentence of the co-offender, and if so, whether the appellant's exceptional assistance to the authorities warranted a reduction in sentence.

The court considered the principle that sentences for similar crimes should not be manifestly disproportionate. The court noted that the co-offender had received a lesser sentence, which created a disparity. The appellant argued that the disparity was so significant as to be unjust, and that the sentence should be reduced. Additionally, the appellant presented evidence of exceptional assistance provided to the authorities, which included cooperating fully, providing information that led to the apprehension of other offenders, and expressing remorse. The court acknowledged these factors and weighed them against the severity of the offence and the need for deterrence and denunciation.

After considering the arguments and evidence presented, the court found that the sentence was indeed manifestly disproportionate when compared to the co-offender's sentence. The court also recognised the appellant's exceptional assistance to the authorities as a significant mitigating factor. Consequently, the court reduced the appellant's sentence, reflecting both the disparity and the appellant's contributions. The court emphasised that the reduced sentence still served the purposes of punishment, deterrence, and denunciation, while also ensuring that the sentence was proportionate and just.

Orders