Sentencing terror
Friday, June 15, 2012
Justinian in Court in the Act, Judge James Montgomery, Sentencing

Fabulous sentencing transcript from County Court, Victoria ... Judge James Montgomery and counsel wrestle with the dates and the years ... Pythonesque proceedings ... Court reporter struggles to keep up ... Tears to the eyes 

His Honour, Judge Montgomery: On each of the four summary charges I sentence you to a term of imprisonment of six months, and the starting date for each will be today, that is 10 November 2011 thus making a total of six months for those offences. 

In relation to the first charge on the indictment, Charge 1, I sentence you to a term of imprisonment of five years, the starting date being 10 May 2014. On Charge 2 on the indictment, I sentence you to a term of imprisonment of three years, the starting date being 10 May 2016, which should make a total of seven and a half years. Is that arithmetic correct?

Ms McLeod (Prosecutor): Was Your Honour intending in relation to the migration charges to have them all commence today? 

HH: Yes.

McLeod: I just wonder then that if they all commenced today, that will be a total of six months for them. 

HH: That's right.

McLeod: They will then expire six months from today.

HH: That is the 10th of the 5th, 14 - sorry - 10th of the 5th --- 

McLeod: Twelve. 

HH: Twelve, what did I say? 

McLeod: Fourteen.

HH: I did not mean to say that, yes, sorry. 

McLeod: Would that mean then Your Honour ---

HH: So the commencing date for Charge 1 will be the 10th of the 5th, 2012. Is that right? 

McLeod: And is Your Honour's intention for Charge 2 to remain the 10th of the 6th, 2016, or would that be ---

HH: That's five years on, so that's --- 

Mr Nikakis (defence counsel): Seventeen.

HH: Seventeen sorry, I knew I had mucked it up. The next one is three years, so two years into that, that commences. So that would be 14, is that right? The five years start on 12 May 2012, correct? 

McLeod: Yes.

Nikakis: It takes it to --- 

HH: Then the three years starts on 10 May --- 

Nikakis: Seventeen.

HH: No, that takes Charge 1 to 17. 

McLeod: Yes.

Nikakis: Correct.

HH: The two years to start on 10 May 2014. 

Nikakis: What two years? 

McLeod: The three years.

HH: The three years on Charge 2. 

Nikakis: Yes. 

HH: To start on 10 May 2014. 

Nikakis: Fourteen.

HH: Which means a total of seven on those two charges. 

McLeod: That would finish on 10 May 2017.

Nikakis: That would finish - it would be three years from 10 May 2014.

HH: They all finish on the same date. 

McLeod: Yes. 

Nikakis: That takes it to 10 May 2017. The three years of Count 2. 

HH: Yes. 

Nikakis: From 2014 takes it to 2017, they finish both on the same day, that's correct.

McLeod: Yes, that's my calculation. 

HH: Does that get me to seven on that? 

Nikakis: From when? 

HH: 10 May 2012, it is only five is it? 

McLeod: It only gets you to five Your Honour, yes. 

HH: How do I get to seven?

Nikakis: Taking into account the PSD, that is seven years.

HH: No, don't worry about PSD yet. I have obviously ---

McLeod: It will get you to a total of five and a half.

HH: So how do I get to seven and a half? Where do I start it?

McLeod: The sentence will have to commence on 10 May 2012 or certainly ---

HH: This is for the second charge. 

McLeod: Sorry, this is for Charge 1.

HH: I have got Charge 1 organised, it starts on 10 May 2012 and runs for five years, to 2017.

Nikakis: It has got to start 10 May 2016.

McLeod: Yes. 

Nikakis: So that is two years on top.

HH: Sorry, yes. To add two years on top, it has to start on 10 May 2016.

McLeod: Yes.

HH: Which is what I thought I said. 

McLeod: You did originally, yes Your Honour. 

Nikakis: Which brings the expiration on 10 May 2019 --- 

McLeod: Eighteen.

HH: Nineteen. 

McLeod: Eighteen. 

HH: Eighteen. 

McLeod: No, sorry it should be nineteen. 

Nikakis: So two years on top of the five year sentence. 

HH: That's right, so it makes a total of seven-and-a-half.

Nikakis: That's right. 

HH: I fix a non-parole period of five. I will check it with the Crown afterwards, I have figures everywhere. Ms McLeod, tell me I am right or hereafter remain silent. 

Court reporter: You have no idea the struggle it is to get this on the court computer. 

McLeod: Certainly Your Honour. 

Nikakis: Certainly can if it starts in 2016 and goes for three years. 

McLeod: Yes.

Nikakis: That means effectively one year is concurrent with the original sentence of five years ---

HH: No, two years. 

Nikakis: Sorry, one year is concurrent, two years on top of the original sentence of ---

HH: Yes, that is right, yes. 

Nikakis: Which makes a total of seven years, plus the six months for the migration matters, seven-and-a-half, minimum of five. 

Mcleod: Yes. Yes, I agree Your Honour.

HH: I think Mr Nikakis is looking for a bit of money from the Crown as well.

McLeod: He must have read the federal sentencing paper Your Honour.

HH: So that is non-parole period of five. 

Nikakis: Yes.

HH: I further declare that you have served the period of 770 days, not including today, in pre-sentence detention in respect of these offences and direct that this period be reckoned as time already served under the sentence

I have totally imposed, and further direct that the records of the court so record. Pursuant to s.6AAA of the Sentencing Act I declare that, but for your pleas of guilty I would have sentenced you to a term of imprisonment of ten years with a non-parole period of eight. 

McLeod: As Your Honour pleases ... 

Full sentencing transcript DPP v Son Van Nguyen

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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