R v Nguyen and Okobagerish - [2002] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos. 174 & 183 of 2001

THE QUEEN

VU HOANG NGUYEN
and

NATNAL OKOBAGERISH

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JUDGES:	BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2002
DATE OF JUDGMENT:	21 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 130	1^st Revision – 1 July 2003

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CRIMINAL LAW - Sentencing - Multiple offences of armed robbery, attempted armed robbery and theft by "youthful offenders" - Whether sentences manifestly excessive, individually, in totality and in minimum term - Whether sentence imposed on a co-offender of the principal offender was disparate from sentence imposed on the other appellant.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Appellant Nguyen

Mr O.P. Holdenson, Q.C.

Mr S. Lindner

K. Robertson, Solicitor for Public Prosecutions

Victoria Legal Aid

For the Appellant Okobagerish

Mr P. Morrissey

Victoria Legal Aid

BATT, J.A.:

I agree with O’Bryan, A.J.A. I add comments of my own only on the question of the non-parole period fixed for the appellant Okobagerish, the one aspect of these appeals which has caused me difficulty. The concession made on behalf of the respondent is a significant matter, though it cannot, of course, be decisive. Further, rehabilitation of a youthful offender is a particularly important sentencing purpose. In the end, however, I have come to the conclusion that, having regard to this appellant’s rather unencouraging prospects, the only reduction in the non-parole period that could be justified would amount to no more than “tinkering” with the sentence and that means that the non-parole period is not, in my view, manifestly excessive.

EAMES, J.A.:

I have had the advantage of reading the reasons of O’Bryan, A.J.A. and, substantially for the reasons his Honour expressed, I agree with his Honour’s conclusion as to the outcome of the appeal by Vu Hoang Nguyen. There are, however, some issues dealt with in his Honour’s reasons with respect to the appeal of Nguyen on which I desire to make further comment. As to the appeal by Natnal Okogaberish I respectfully do not agree as to the outcome proposed by O’Bryan, A.J.A. As mine is a minority opinion I will confine what I say about these appeals, and I will consider the appeal of Okobagerish first.

The offences committed by Okobagerish were extremely serious examples of a type of armed robbery that is very prevalent and causes justifiable community concern. For substantially the reasons given by O’Bryan, A.J.A, I agree that the sentences imposed on Okobagerish on each offence, and the orders as to cumulation, were appropriate and should not be varied. Thus, the total effective sentence of 8 years and 2 months should stand. My area of disagreement relates to the non-parole period of 6 years which the learned sentencing judge fixed.

One, but by no means the only, consideration in fixing a non-parole period is

the mitigation of punishment of the offender, in favour of his rehabilitation, by his conditional release at the earliest appropriate time,…

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.

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Details

Case: [2002] VSCA 130
Decision Date: 21 August 2002

CaseChat Overview and Summary

The case of R v Nguyen and Okobagerish involved two defendants, Nguyen and Okobagerish, who were convicted of multiple offences including armed robbery, attempted armed robbery, and theft. The matter was heard in the Court of Appeal. The appeal was concerned with the sentences imposed on the appellants and whether those sentences were manifestly excessive, both individually and in the aggregate, as well as the minimum terms of their imprisonment. Additionally, the appeal questioned whether the sentence imposed on one appellant, who was a co-offender of the principal offender, was disparate from the sentence imposed on the other appellant.

The central legal issues before the court were whether the sentences imposed on the appellants were manifestly excessive, both in isolation and in combination, and if the minimum terms of imprisonment were justified. The court also considered whether the disparity between the sentences imposed on the two appellants was unreasonable. The court examined the nature and circumstances of the offences, the appellants' backgrounds, and the principles of sentencing, including the need for proportionality and consistency in sentencing.

In assessing the sentences, the court found that while the appellants' offences were serious, the sentences were not manifestly excessive, individually or in the aggregate. The court acknowledged the seriousness of the crimes and the need for deterrence, but also considered the appellants' ages and the potential for rehabilitation. The court determined that the sentences, while severe, were proportionate to the crimes committed. Regarding the minimum terms of imprisonment, the court found that these were justified in light of the nature of the offences. The court also held that the disparity between the sentences was not unreasonable, as it reflected the different roles and levels of involvement of the appellants in the criminal activities.

The court upheld the sentences imposed on the appellants, with no orders for alteration. The appeal was dismissed.

Orders