SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2022 0156	

MATTIN NGUYEN	Applicant	
		
v		
		
THE KING	Respondent	

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JUDGES:	WALKER and MACAULAY JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 August 2023 	
DATE OF JUDGMENT:	5 September 2023	
MEDIUM NEUTRAL CITATION:	[2023] VSCA 206	
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Lacava, 22 September 2023) 	

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CRIMINAL LAW – Appeal – Sentence – Individual sentences of 12 months’ imprisonment for possessing prohibited weapon without exemption and order for cumulation of 6 months held to be manifestly excessive – Applicant also convicted of other offences including home invasion and intentionally cause injury resulting in total effective sentence of 4 years 6 months’ imprisonment and 3 years non-parole – Whether any reasonable prospect Court would reduce total effective sentence despite error in sentence on weapons offences – Leave to appeal granted and appeal allowed – Applicant resentenced to 4 years and 14 days’ total effective sentence, non-parole period of 2 years and 4 months. 

Criminal Procedure Act 2009, s280(1)(b); Barwick v The Queen [2015] VSCA 100, Azzopardi v The Queen (2011) 35 VR 43, considered.
 
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Counsel	
Applicant:		Mr J Gullaci SC with Mr T Glass	
Respondent:		Ms K Hamill	
	
Solicitors	
Applicant:		Marshall Jovanovska and Ralph	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

WALKER JA 
Macaulay JA:
1	On 16 September 2022, the applicant was convicted by plea of guilty in the County Court of five indictable offences and two related summary offences. On 26 September 2022, he was sentenced as follows: 
Charge 	Offence 	Maximum 	Sentence 	Cumulation 	
1	Home invasion	25 years	3 years and 6 months	Base	
2	Intentionally damage property	10 years	1 month 	Nil	
3	Intentionally cause injury	10 years	12 months	6 months	
4	Possess drug of dependence	12 months	Convicted and discharged	N/A	
5	Possess drug of dependence	12 months	Convicted and discharged	Nil	
Summary charge 10	Possess prohibited weapon without exemption	2 years	12 months	6 months	
Summary charge 11	Possess prohibited weapon without exemption	2 years	12 months	Nil	
Total Effective Sentence: 	4 years and 6 months’ imprisonment	
Non-Parole Period:	3 years’ imprisonment	
Section 6AAA Statement: 	7 years’ imprisonment and non-parole period of 5 years	
Other relevant orders: 	Forfeiture and disposal orders	
2	The applicant applied for leave to appeal his sentences on a single ground, namely that the individual sentences imposed on summary charges 10 and 11, the order for cumulation concerning summary charge 10, and the total effective sentence and non‑parole period imposed, were manifestly excessive. 
3	For reasons that can be stated succinctly, we conclude that the application for leave to appeal should be granted, the appeal allowed and the applicant resentenced as set out later in these reasons, with the result that the total effective sentence is 4 years and 14 days’ imprisonment with a non-parole period of 2 years and 4 months. 
4	The respondent conceded — correctly in our view — that the individual sentences imposed on summary charges 10 and 11 are manifestly excessive. The question then becomes, as the respondent submits, whether despite the existence of error, ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence’. Were that the case, this Court may refuse an application for leave to appeal. 
5	However, for reasons which we will explain, we are not of that view — that is, we do not agree with the respondent that a term of imprisonment of 4 years and 6 months, for everything that the applicant did, constitutes such a moderate sentence that there is no reasonable prospect this Court would reduce the total effective sentence. Indeed, as is apparent from what we have said above, we would reduce the total effective sentence. 
Circumstances of offending 
6	Before the sentencing judge, the parties agreed that the summary of prosecution opening accurately portrayed the proper factual basis upon which sentence could be passed. The judge set the facts out in an abbreviated form, sufficiently for our purposes, as follows:
	You [the applicant] had been in a relationship with one, Trini Nguyen. That relationship broke down and you had been advised by Trini Nguyen that your relationship with her was at an end. At the time that you committed the offences in the first three charges on the indictment Trini Nguyen was in a relationship with one, Brooklyn Clay, and they were living at an address in Dandenong. In the lead‑up to the offending you sent a series of what can properly be described as abusive messages to Ms Nguyen in which you threatened her and her new partner. It is fair to say, I think, that you were motivated by jealousy and probably revenge at Ms Nguyen terminating the relationship that she had previously had with you, and I am told and accept, that at the time of the offending you were using cocaine and cannabis. That no doubt clouded your thinking and it probably disinhibited you somewhat and you set about gathering some co-offenders, which resulted in you attending the home occupied by Ms Nguyen and her new partner in the afternoon on 23 September 2021.
	Before you went you sent some more threatening messages. You had some what might be described as some inside assistance by others or another living in the house but, in any event, you went to the house with two other co-offenders with the intention of assaulting Mr Clay, a person whom you had never met. You entered the house [charge 1] and after having done so one of your co-offenders attempted to strike Mr Clay but fortunately missed but he punched a hole in the plaster wall [charge 2]. A physical altercation occurred on the stairs and then moved further down the stairs and you and your co-offenders wrestled with Mr Clay and punched him in the head . Fortunately Mr Clay was able to escape to the nearby street but he was followed by you and your accomplices and soon after you decamped the scene in a car. As a result of the attack by you and your co-offenders Mr Clay was injured. He suffered bruising to his head, a blood nose, cuts to his ear and the side of his head [charge 3].
	After the physical altercation you again sent messages via social media platform, Instagram, to Mr Clay, threatening to see him again. About a minute later you sent another message saying, ‘Don’t make me come back with guns, LOL’, there being a clear implication that you would return with guns next time. In that message you also further abused your former partner, Trini Nguyen.’
7	The applicant was arrested at his home on 14 October 2021. During a search of his home, police located: cocaine (charge 4); cannabis L (charge 5); knuckledusters (summary offence charge 10); and a sword (summary offence charge 11). 
8	The applicant was 29 years old at the time of offending and is now 30 years old. He had a modest criminal history, comprised of one appearance in the Magistrates’ Court on 10 February 2012, when 19 years of age, charged with possessing a prohibited weapon without exemption, possessing a controlled weapon without excuse, and possessing a dangerous article in a public place. For those three charges he was placed on an adjourned undertaking for six months without conviction. He complied with that undertaking and remained offence-free between 10 February 2012 and the occasion of the offending the subject of this application, which occurred in September 2021. 
Sentencing judge’s remarks
9	The sentencing judge assessed the objective seriousness of the applicant’s offending. He found that the home invasion was ‘a lower than mid-range’ example of the offence. The judge took note that Parliament regarded the offence of home invasion very seriously, shown by the 25-year maximum penalty. He considered that the sentencing purposes of deterrence, both general and specific, denunciation, protection of the community and just punishment should inform the fixing of an appropriate sentence. 
10	The judge identified a number of mitigating factors. They were that:
(a)	the applicant pleaded guilty at the earliest available opportunity;
(b)	the applicant demonstrated remorse for the offending; 
(c)	the applicant pleaded guilty at a time when, because of the COVID-19 pandemic, the courts were confronted with a backlog of trials; 
(d)	138 days of pre-sentence detention had been served at a time when, again due to the pandemic, the time served was more burdensome than it ought to be, as would be the sentence about to be imposed; and
(e)	the applicant had reasonably good prospects of rehabilitation, demonstrated by the fact that, since offending, the applicant had remained drug-free (attested by urine analysis certificates), attended a psychologist to address his offending, had good family support, had an excellent work record and had a good employment future upon release from prison. 
The sentences on the summary charges were manifestly excessive
11	Turning to the judge’s disposition for the two related summary offences of possessing a prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990 — each carrying a maximum term of imprisonment of 2 years — the respondent pointed out that the current sentencing practice for this offence was examined in some depth in Barwick v The Queen. By reference to an analysis of numerous cases, in Barwick this Court noted that (at the time):
	[t]he longest sentence that was imposed for that offence was nine months’ imprisonment. In most cases, the sentence imposed was one or two months and the level of cumulation did not exceed one month.
12	The Court went on to find that the relevant individual sentence imposed by the sentencing judge for the offence, being 12 months’ imprisonment and the order of 3 months cumulation, ‘significantly depart[ed] from current sentencing practice’, and reduced the sentence to 2 months’ imprisonment with 1 month cumulation. 
13	No suggestion is made here of any contextual criminality attaching to the applicant’s possession of the sword and knuckledusters. These items were located at his home and not, for example, in the vehicle he drove to the home invasion or in his possession while in public. 
14	Against this background, we agree that the sentences imposed on the two related summary offences were manifestly excessive. Having regard to the same context, and the operation of the principle of totality on the facts of this case, we think that the cumulation of 6 months of the sentence for summary charge 10 was also manifestly excessive. We hold these views notwithstanding that the applicant’s only past offending (without conviction), nearly 10 years earlier, involved the possession of a prohibited weapon and other cognate offences.
Should leave to appeal be granted?
15	Section 280(1)(b) of the Criminal Procedure Act 2009 provides:
(1) 	The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if— 
…
(b) 	there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
16	By his proposed ground of appeal, the applicant also contended that the total effective sentence of 4 years and 6 months for the entirety of his offending was wholly outside of the range reasonably open to the sentencing judge. However, in oral submissions, the applicant did not argue that the base sentence of 3 years and 6 months imposed in respect of charge 1 (home invasion), the sentence of 12 months imposed on charge 3 (intentionally causing injury) or the 6 months of that sentence cumulated upon the base, were individual sentences wholly outside the range reasonably open to the sentencing judge. Rather, he argued that the order that 6 months of the sentence imposed for summary charge 10 be served cumulatively upon those other two sentences resulted in a manifestly excessive total effective sentence.
17	The respondent submitted that, absent the sentences imposed on the prohibited weapons charges, that a term of imprisonment of 4 years and 6 months in respect of all of his other offending amounted to a very moderate sentence, given the nature of that offending. In particular, the respondent submitted that 3 years and 6 months imposed on the home invasion charge was ‘exceedingly low’ and ‘perhaps merciful’. 
18	In making that submission, the respondent did not contend that the 3 years and 6 months was itself a manifestly inadequate sentence. Instead, as already mentioned, the respondent argued that, despite the errors in the sentences imposed on the two summary charges, including the related order for cumulation, there is no reasonable prospect that upon resentencing the applicant (following a successful appeal) this Court would reduce the total effective sentence. If so, the respondent submitted, the Court may (and should) refuse leave to appeal under s 280(1)(b).
19	To come to that conclusion, we would need to be persuaded that, despite the errors, the total effective sentence of 4 years and 6 months with a non-parole period of 3 years could only be viewed as moderate. But we are not so persuaded. In particular, and in contrast with the conclusion the Court was able to draw in Tedford v The Queen, we are not persuaded that, if the sentencing discretion is reopened overall, the same total effective sentence would be imposed by dint of an increase in either (or both) the base sentence or the order for cumulation on charge 3 (or, for that matter, on the sentences on any of the other charges).
20	It is not necessary for us to decide whether the total effective sentence of 4 years 6 months for the entirety of the applicant’s criminality was wholly outside the range of sentences reasonably open to the sentencing judge. Had that been our task, we doubt we would have reached that conclusion. Nevertheless, it is not our task. Having found error in relation to the sentence imposed on summary offences 10 and 11, and error in the order for cumulation made with respect to summary charge 10, and also not being of the view that there is no reasonable prospect the Court would reduce the total effective sentence, we must grant leave to appeal and allow the appeal. 
Re-sentencing the applicant
21	The applicant then falls to be resentenced. It is necessary to commence by observing that home invasion is a very serious offence. Parliament has very clearly signalled its view of the seriousness of the offence by fixing a maximum penalty of 25 years. People are entitled to feel safe in their own homes. However, such offending occurs on a spectrum of seriousness. We agree with the judge that the home invasion in this case represents a lower than mid-range example of the offence in terms of its objective seriousness; and the prosecution accepted as much on the appeal. 
22	In this particular instance, a combination of features — some tending to indicate more serious behaviour and others tending in the opposite direction — taken together, justified the judge’s assessment of the gravity of the offending. The home invasion offence occurred during the daytime, without forced entry, absent any weapons, and over a short duration. On the other hand, the applicant was in company with others and the entry was pre-planned. Furthermore, the episode involved the applicant sending threatening text messages to his ex-partner and then invading the home she shared with her new partner. Those matters mean that a significant period of imprisonment was undoubtedly required. 
23	In sentencing the applicant, proper weight must be given to general and specific deterrence, denunciation, protection of the community and just punishment. Aiming to achieve the purposes of general deterrence, denunciation and just punishment would, in light of the maximum penalty, rightly point to the appropriateness of a term of imprisonment of a number of years. Yet, the applicant was able to call upon a significant array of mitigatory factors. Having regard to those factors, the weight to be given to the satisfaction of those purposes just listed is, to a degree, moderated. Commensurately, the purpose of facilitating the promotion of rehabilitation is elevated. 
24	We are mindful that the Court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. There comes a point where the imposition of an sentence that travels beyond what is required to achieve proper sentencing objectives may be ‘harmful’. For instance it may have that effect by inhibiting rather than promoting rehabilitation and, in that way, undermining the protection of the community.
25	Exercising the discretion afresh, we agree with the sentencing judge that a term of imprisonment of 3 years and 6 months on charge 1 (home invasion) is appropriate. It will be the base. Charge 3 (intentionally causing injury) merits a sentence of 12 months imprisonment and, due to the separate criminality it reflects, we also agree with the sentencing judge that 6 months of that sentence ought to be served cumulatively upon the sentence for charge 1. Further, we would not disturb the sentences that the judge imposed for charges 2, 4 and 5. 
26	As for summary charges 10 and 11 (possessing prohibited weapons without exemption), in our view they each warrant a term of imprisonment given that the applicant has previously been dealt with by a court for similar offending. In all the circumstances, we would impose a 2 month term of imprisonment on summary charge 10 (knuckledusters), a 1 month term of imprisonment on summary charge 11 (sword), and order that 14 days of the sentence on summary charge 10 be served cumulatively upon the sentences imposed on charges 1 and 2, to reflect the separate criminality involved in this offending. 
27	The total effective sentence is a term of imprisonment of 4 years and 14 days. We consider that, in light of his good prospects of rehabilitation, a non-parole period that is shorter than it would have been without such prospects is appropriate. We will thus order that the applicant must serve a period of 2 years and 4 months before being eligible for parole. We declare that time already served under the sentence the subject of the appeal shall be reckoned as time served in respect of this sentence. But for his plea of guilty, we would have sentenced the applicant to a total effective sentence of 6 years and 6 months’ imprisonment with a non‑parole period of 4 years. 
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