Nguyen, Duc Quang v The Queen - [2008] NSWCCA 219

Reported Decision: 189 A Crim R 454

New South Wales

Court of Criminal Appeal

CITATION: NGUYEN, Duc Quang v R [2008] NSWCCA 219

HEARING DATE(S): 18 July 2008

JUDGMENT DATE:
30 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of aggravation - connection between mental illness and offending - finding of future risk to community - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Allen v R [2008] NSWCCA 11
Ma and Pham v R [2007] NSWCCA 240
R v Arnold [2004] NSWCCA 294
R v Haines [2004] NSWCCA 294
R v Hemsley [2004] NSWCCA 228
R v Hughes [2005] NSWCCA 117
R v Pham [2005] NSWCCA 314
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Wicks [2005] NSWCCA 213
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Duc Quang Nguyen (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2007/3870

COUNSEL: I Nash (App)
P Ingram (Resp)

SOLICITORS: Legal Aid Commission of NSW (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3074

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 24 August 2007

2007/3870

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J
30 OCTOBER 2008

Duc Quang NGUYEN v R

Judgment

1 McCLELLAN CJ at CL: I agree with Fullerton J.

2 HIDDEN J: I agree with Fullerton J.

3 FULLERTON J: On 20 April 2007 the applicant pleaded guilty in the District Court at Campbelltown to a single count of break and enter with intent to commit the serious indictable offence of larceny in circumstances of aggravation, namely by inflicting actual bodily harm on the occupant of the home unit that was the subject of the break and enter, contrary to s 112(2) of the Crimes Act 1900.

4 The offence attracts a maximum term of imprisonment of 20 years and a standard non-parole period of 5 years, pursuant to Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

5 On 24 August 2007 the applicant was sentenced to a term of imprisonment consisting of a non-parole period of 3 years and 9 months, commencing on 16 October 2006 and expiring on 15 July 2010, with a balance of term of 1 year and 3 months commencing on 16 July 2010 and expiring on 15 October 2011. The sentence was backdated to commence on 16 October 2006, the date the applicant was taken into custody. He remained in custody from that date pending sentence.

6 The applicant seeks leave to appeal against sentence on two grounds:

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: [2008] NSWCCA 219
Decision Date: 30 October 2008

CaseChat Overview and Summary

Duc Quang Nguyen appealed against his sentence for breaking and entering with intent to commit a serious indictable offence in circumstances of aggravation. The matter was heard in the High Court of Australia. The primary issue for the court was whether the sentence imposed on Nguyen was manifestly excessive, particularly considering his mental health and the connection between his illness and his criminal behaviour. Additionally, the court needed to determine if the trial judge appropriately weighed the aggravating factors, including the finding of future risk to the community, in the context of the defendant's mental health.

The court held that the trial judge had adequately considered the defendant's mental health and its connection to his offending, as well as the aggravating factors. The sentencing judge found that the defendant was suffering from a mental illness at the time of the offence, which did not excuse his actions but was a mitigating factor. The court held that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such offences, and the judge had appropriately balanced the mitigating and aggravating factors. The High Court concluded that the trial judge had exercised his discretion properly in imposing the sentence, and the appeal was dismissed.

Orders