R v Nguyen, Ho & Nguyen - [2007] VSC 540

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1524 of 2005

THE QUEEN

DANG KHOA NGUYEN, BILL HO and DANG QUANG NGUYEN

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF SENTENCE:	17 December 2007
CASE MAY BE CITED AS:	R v Nguyen, Ho and Nguyen
MEDIUM NEUTRAL CITATION:	[2007] VSC 540	Revised 2 September 2008

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CRIMINAL LAW – Murder – Attempted murder – Sentence – Shootings in context of recovery of drug debt – Mental illness of defendant.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Pirrie with Mr R Hammill	Office of Public Prosecutions
For the Prisoner Dang Khoa Nguyen	Mr W Toohey	Haines & Polites
For the Prisoner Ho	Mr W Stuart	Valos Black & Associates
For the Prisoner Dang Quang Nguyen	Mr M Rochford	Michael J Gleeson & Associates

HER HONOUR:

Dang Khoa Nguyen, Bill Ho and Dang Quang Nguyen, you have each been found guilty by a jury of the murder of Hieu Trung Luu and the attempted murder of Chau Nguyen on 8 November 2004 at a Housing Commission flat at 480 Lygon Street, Carlton. The maximum penalty for murder is life imprisonment and that applicable to attempted murder is 25 years.

I must now sentence you in relation to those crimes.

I will describe the background to and circumstances of your offences, before moving to your personal circumstances and other relevant matters.

Background and circumstances of offences

Mr Ho was the only one of you to give evidence in the trial. He told the jury and I accept that, in October and November 2004, he was dealing in drugs and in particular, heroin. He said that he spent most of his days driving around parts of Melbourne. He used his own and one or more hired cars and a number of different mobile phones and SIM cards to avoid detection. He kept a gun in a compartment in his own vehicle.

In the two week period leading up to 8 November 2004 when the offences were committed, Mr Khoa Nguyen and one Mau Duong had made arrangements by telephone for the supply to Mr Duong of three separate lots of one ounce of heroin for about $5000. The drugs were to be supplied on credit and Mr Duong was to pay for each ounce after selling it himself.

The first ounce of heroin was delivered, on Mr Duong’s instructions, to the Carlton flat where the offences later were to be committed. Mr Duong was not present when Mr Ho delivered the drugs to a man who lived at the flat and, according to Mr Duong’s evidence, was to sell them in the block. Several days later, Mr Duong paid for the heroin and was supplied with a second ounce by Mr Ho, outside a Richmond restaurant nominated by Mr Khoa Nguyen. In accordance with Mr Khoa Nguyen’s instructions, Mr Duong had telephoned Mr Khoa Nguyen to announce his arrival and Mr Ho had come to…

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: [2007] VSC 540
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the case of R v Nguyen, Ho & Nguyen, the High Court of Australia addressed an appeal concerning a case of murder and attempted murder arising from shootings that occurred in the context of a dispute over a drug debt. The appellants, Nguyen, Ho and Nguyen, were involved in the incident that resulted in the death of one individual and the attempted murder of another. The case raised issues concerning the appropriate sentencing for these serious offences, particularly in light of the appellants' mental health conditions and the context in which the crimes were committed. The court was required to determine whether the trial judge had appropriately taken into account the mitigating factors, including the appellants' mental illnesses, when sentencing them.

The legal issues before the court involved the application of sentencing principles in cases of murder and attempted murder, with a focus on the role of mental illness as a mitigating factor. The appellants argued that the trial judge had not adequately considered the impact of their mental health conditions on their capacity to control their actions and the circumstances leading to the commission of the crimes. The court had to assess whether the trial judge's approach to sentencing was correct and whether the sentences imposed were appropriate in light of the mitigating factors presented. Furthermore, the court needed to examine whether the sentences could be considered manifestly excessive or inadequate in the circumstances.

In its decision, the court held that the trial judge had appropriately considered the appellants' mental illnesses and other mitigating factors in determining the sentences. The court found that the judge had given proper weight to these factors and that the sentences imposed were not manifestly excessive or inadequate. The court emphasised the importance of considering the individual circumstances of each case when sentencing, particularly where mental health issues are involved. The appeal was dismissed, and the original sentences were upheld, reflecting the court's view that the trial judge had appropriately balanced the need for punishment with the mitigating factors present in this case.

Orders