Bach v The Queen

[2016] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:

Bach v R [2016] NSWDC 278

Hearing dates:

6 September 2016

Date of orders:

06 September 2016

Decision date:

06 September 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Appeal allowed

 

Conviction recorded and sentence passed by Downing Centre Local Court on 13 April 2016 set aside

Released on 18 month good behaviour good pursuant to s 10(1)(b)

Catchwords:

CRIMINAL LAW – Appeal against severity of sentence – Technical breach of AVO within minutes of its being served by police – Appellant of prior good character – Amount of fine exceeded two weeks net income – Section 10(1)(b) Crimes Act 1900 applied

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Category:

Principal judgment

Parties:

Nguyen Bach (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Mr M Valentin (Appellant)   
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/103142

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Criminal

Date of Decision:

13 April 2016

Before:

Mottley DCM

File Number(s):

2016/103142

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Deputy Chief Magistrate Mottley sitting in the Downing Centre Local Court on 13 April 2016. The appellant pleaded guilty at the earliest available opportunity to a charge that on 5 April 2016 at Darlinghurst she did knowingly contravene a prohibition or restriction contained in an apprehended domestic violence order. The learned Magistrate imposed a fine of $1,100.

2. The appellant’s surname is Nguyen. She is described in the factsheets by the police as “Kathy Bach NGUYEN” and records from the Socialist Republic of Vietnam describe her as Bach Nguyen Tuyet Van. It may be that in Vietnamese her surname is both Bach and Nguyen but it appears from what I have been told from the Bar table that she is known as Nguyen Tuyet Van Bach. In any event, nothing much turns on the correct order of the appellant’s names.

3. She came before the Local Court as a lady of prior good character. There is no suggestion that she has any criminal record in this State or in this country and there are records from the Socialist Republic of Vietnam that she has no criminal record in her native country.

4. The appellant appears to have had a sheltered upbringing. According to the evidence before me, her parents operate one of the longest running law firms in South Vietnam and impressed a close acquaintance of the appellant, who describes himself as a “Taiwanese-American”, as of aristocratic mien who grew up in what could be described as the rigid upper class culture of Vietnam prior to the collapse of democratic government in that country. Her family has also been described as both respected and affluent.

5. In Vietnam the appellant studied in an MBA program offered by the Royal Melbourne Institute of Technology University which had a campus there and more recently the appellant has come to Australia and is currently studying at the University of Technology in Sydney. Prior to undertaking study at the University of Technology, she was studying at the Australian Institute of Music.

6. There she met Mr Grant Samuels who was a teacher at the Institute and at various times taught the appellant. They formed an intimate relationship which ended sometime in late 2015. Something or other caused Mr Samuels to apply for an AVO. That was granted by the Downing Centre Local Court and at 12.05pm on Tuesday 5 April 2016 the appellant was served with the AVO by the police.

7. Within a quarter of an hour of the service of the order, the appellant left her apartment and walked to the apartment of Mr Samuels where she knocked on the withinsill of Mr Samuel’s apartment. Mr Samuels looked out of his window and identified the appellant as the person standing outside his window knocking on his window sill. He then made a call to the police and the same police who had served the AVO on the appellant saw the appellant walking from Mr Samuel’s residence back in the direction of her own residence holding the AVO in her hand.

8. Whilst the evidence does not disclose it, it is a possibility that the appellant did not understand the nature of the orders contained on the AVO papers and merely wished to make some inquiry of Mr Samuels as to their significance. In any event, if there were a breach, which the appellant admits by pleading guilty, it was technical in a sense and no harm has been established and no inconvenience has been disclosed to Mr Samuels.

9. It has been submitted from the Bar table that the appellant was upset and confused by the service of the AVO and that is quite possible. That is especially so when one considers that on 13 April 2016 the appellant appeared before the Downing Centre Local Court and was fined and then on 6 May 2016 filed a notice of appeal to this Court but later in that month was seen by Dr Albert Ling at the UTS Health Service who noted that she had an impending Court case, was crying and was fearful and that she required an increase in her medication. She also told Dr Ling that she could not do the exam which she was scheduled to sit. A “chronic disease management plan” organised by Dr Ling clearly suggests that the appellant has been suffering from anxiety on a chronic basis and has been prescribed the drug Lovan which had caused her to settle and the same document notes that acupuncture had also decreased the amount of the appellant’s anxiety. The management plan is dated 5 June 2016. In other words, the medical evidence suggests that the appellant was greatly upset by the litigation process and required medication to calm her down which is consistent with her having been upset and confused by the service of the AVO and no doubt fearful of what to her would be a foreign, criminal justice system.

10. The appellant subsists on moneys remitted to her by her parents from Vietnam and she receives approximately $500 per week. I accept that the appellant would have a reduced capacity to pay the fine of $1,100. The circumstances in my view all point to this being an appropriate case for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 and there is no opposition from the Crown to that course of action.

11. For those reasons, I set aside the conviction recorded and the sentence passed by the Downing Centre Local Court on 13 April 2016.

12. Ms Nguyen, under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction but having regard to your prior good character, I am satisfied that it is expedient to release you on a good behaviour bond. I order that you be released on a good behaviour bond for a period of 18 months from today. Conditions of the bond are as follows:

1. you are to appear before the Court called upon to do so at any time during the term of the bond;

2. you are to be of good behaviour;

3. you are to reside at [redacted]; and

4. you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond.

13. Would you take her to the Registry, Mr Valentin?

14. VALENTIN: Yes, your Honour.

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Decision last updated: 02 November 2016