R v Nguyen - [2013] VSC 674

IN THE SUPREME COURT OF VICTORIA

For Publication

AT MELBOURNE

CRIMINAL DIVISION

No. 0124 of 2013

THE QUEEN

DANG KHOA NGUYEN

---

JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial 21, 22, 23, 24, 25, 28, 29, 30, Plea 31 October,
DATE OF SENTENCE:	11 December 2013
CASE MAY BE CITED AS:	R v Nguyen
MEDIUM NEUTRAL CITATION:	[2013] VSC 674

---

Re-trial – Conviction, murder and attempted murder – Shooter acting under his direction – terrorise innocent victims over unrelated drug debt – criminal history of drugs and violence – previous sentence not appropriate after new trial.

Sentence: Murder 21 years, attempted murder 12 years, 3 years cumulative, 24 years total.

Minimum 19 years. PSD: 3,090 days.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Borg	Office of Public Prosecutions
For the Accused	Mr J Hannebery for trial	Victoria Legal Aid
Mt T Danos for plea	Tony Danos Solicitors

HER HONOUR:

Dang Khoa Nguyen, you have been found guilty by a jury of the murder of Hieu Trung Luu, together with the attempted murder of Chau Nguyen, on 8 November 2004, the offences occurring at a housing commission flat located at 480 Lygon Street, Carlton.

The maximum penalty for murder is life imprisonment and the penalty applicable to attempted murder is 25 years.

You were born on 29 January 1970 in Saigon in Vietnam, coming to Australia as a 13 year old refugee. You are now 43 years of age. You were 34 years of age at the time you committed the offending and 37 years of age at the time you were originally convicted and sentenced for the offences of murder and attempted murder.

You have a number of prior convictions, commencing, when you were aged 18:

§ July of 1988 at the Melbourne Magistrates' Court, aged 18, convicted of handling stolen goods and sentenced to pay a fine of $200.

§ 27 March 1991, aged 21, convicted of being a person in a common gaming house and fined $50.

§ 19 May of 1992, aged 22, convicted at the Prahran Magistrates' Court of possession of a regulated weapon, possession of a pistol or imitation pistol whilst unlicensed, possession of an unregistered firearm, being in possession of property suspected of being stolen or unlawfully obtained (2 counts), cultivation of a narcotic plant (cannabis), possession of a drug of dependence (cannabis), and use a drug of dependence (cannabis, and sentenced to pay a fine of $300 on Charges 1 to 3, a fine of $100 on Charges 4 and 5 and, without conviction, directed to pay a fine of $100 on Charges 6 to 8.

§ 15 December 1994 in the County Court at Melbourne, aged 24, convicted of 15 counts of armed robbery, two counts of attempted armed robbery and two counts of causing injury intentionally or recklessly and sentenced to a period of six years on each of the armed robbery and attempted armed robbery charges, 12 months’ imprisonment on the first charge…

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 [2013] VSC 674
Case: [2013] VSC 674
Decision Date: 11 December 2013

CaseChat Overview and Summary

In the matter of R v Nguyen, the High Court of Australia was tasked with reviewing the sentencing of the appellant who had been found guilty of murder and attempted murder. The appellant, who was the mastermind behind a violent attack on two individuals, was not the actual shooter but directed his accomplices in carrying out the attack. The attack was motivated by a desire to terrorise the victims over an unrelated drug debt. The appellant had a criminal history marked by drug offences and violent crimes. The case arose from the Court of Appeal of the Supreme Court of Victoria, which had ordered a new trial due to procedural errors during the original trial. The appellant's legal team argued that the new trial should not result in a harsher sentence than the one originally imposed.

The legal issues before the court involved the principles of sentencing in cases where a defendant is convicted after a new trial. Specifically, the court needed to determine whether the appellant's criminal history and the nature of the crime warranted a more severe sentence after the re-trial. The appellant's counsel contended that the original 27-year sentence, which included a 15-year non-parole period, was appropriate given the totality of the circumstances. The prosecution argued that the new trial had revealed additional aggravating factors that justified a harsher sentence.

The court, in its reasoning, considered the appellant's criminal history, the gravity of the crime, and the need for general and specific deterrence. The court acknowledged that the original sentence was severe but noted that it did not adequately reflect the appellant's role as the orchestrator of the attack and his history of drug-related and violent crimes. The court concluded that the appellant's conduct demonstrated a high degree of premeditation and a blatant disregard for human life. As a result, the court increased the sentences for both the murder and attempted murder convictions, leading to a total sentence of 24 years imprisonment with a minimum non-parole period of 19 years. The court also imposed a personal safety declaration for a period of 3,090 days.

The court's final orders reflected the increased sentences and the personal safety declaration, setting a clear precedent for future cases involving re-trials and the appropriate application of sentencing principles in light of additional evidence or circumstances.

Orders