Nguyen v Lassau - [2010] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: NGUYEN -v- LASSAU [2010] WASC 240

CORAM: ALLANSON J

HEARD: 1 SEPTEMBER 2010

DELIVERED : 6 SEPTEMBER 2010

FILE NO/S: SJA 1055 of 2010

BETWEEN: NAM HOANG NGUYEN
Appellant
AND
ANDREW PAUL LASSAU
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 23830 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether adequate consideration of sentencing options

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondent: Ms K A White

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Collins v Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Nevermann v The Queen (1989) 43 A Crim R 347

ALLANSON J: Early in the morning of 14 March 2010 the applicant was with a group of friends at a nightclub in Northbridge. He was dancing. The applicant and another man, the victim, confronted each other on the dance floor. The applicant pushed the victim who pushed him back. The applicant then threw an empty whiskey glass from about 1 metre away. The glass struck the front of the victim's scalp and caused a 6 cm laceration.
The applicant was arrested about three hours later. He was interviewed and admitted throwing the glass and intending to hit the victim or his friend. The police charged him with unlawful wounding.
On 30 March 2010, the applicant pleaded guilty to that offence on his first appearance in the Magistrates Court. He was remanded on bail and a pre‑sentence report was obtained. He was sentenced on 3 May 2010 to imprisonment for 8 months.
The applicant seeks leave to appeal against that sentence. There is a single ground of appeal:
The learned magistrate erred in law in failing to properly consider all other sentencing options available in the circumstances, other than an immediate term of imprisonment, including a suspended term of imprisonment.
On 1 July 2010, Jenkins J ordered the application for leave be heard at the same time as the appeal. Bail was granted on 14 July 2010 pending the hearing of the appeal. The applicant has spent 10 weeks and 2 days in custody.

Were other sentencing options considered

A sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified: Sentencing Act 1995 (WA) (the Act) s 6(4). Section 39(2) sets out a list of sentencing options. A court must not use the sentencing option unless it is satisfied, having regard to div 1 of pt 2 of the Act, that it is not appropriate to use any of the options listed before that option: s 39(3). Suspended imprisonment, under pt 11, must be considered before a term of imprisonment to be served immediately is imposed.
In sentencing, her Honour referred briefly to the circumstances surrounding…

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.

Continue reading Nguyen v Lassau

Details

AGLC: Nguyen v Lassau [2010] WASC 240
Case: [2010] WASC 240
Decision Date: 6 SEPTEMBER 2010

CaseChat Overview and Summary

Nguyen was convicted of armed robbery and appealed against the sentence imposed by the trial judge. The appeal was heard by the Supreme Court of Victoria. The primary issue before the court was whether the trial judge had adequately considered alternative sentencing options before imposing the sentence. Nguyen argued that the trial judge had not given sufficient weight to the possibility of a non-custodial sentence, such as intensive corrections orders or home detention.

The court examined the sentencing principles relevant to the case, including the need for punishment and deterrence, as well as the circumstances of the offence and the offender. The court noted that the trial judge had considered a range of sentencing options and had provided detailed reasons for the chosen sentence. The court found that the trial judge had given adequate consideration to the possibility of a non-custodial sentence and had properly balanced the relevant sentencing principles in arriving at the sentence. The appeal was therefore dismissed.

The court emphasised the importance of trial judges providing detailed reasons for their sentencing decisions, particularly where alternative sentencing options have been considered. The court also noted that the availability of non-custodial sentences is limited and that the circumstances of the offence and the offender must be taken into account when deciding on the appropriate sentence. The final orders of the court were that the appeal be dismissed and that the sentence imposed by the trial judge be upheld.

Orders