Nguyen v POLICE - [2009] SASC 255

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NGUYEN v POLICE
[2009] SASC 255
Judgment of The Honourable Justice Sulan
20 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant found guilty of 23 counts of theft - appellant sentenced to 12 months' imprisonment with a non-parole period of six months' imprisonment - appellant ordered to make restitution payments - whether Magistrate erred in not suspending sentence - appeal allowed - good reason exists to suspend sentence - Magistrate erred in not giving sufficient weight to the appellant's requirement for ongoing treatment of his psychological problems and likely effect of an immediate custodial sentence - appellant resentenced to 11 months and two weeks' imprisonment - sentence suspended upon appellant entering into a bond to be of good behaviour for two years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Telford (2005) 242 LSJS 33; R v Powell (2001) 81 SASR 9; R v Davies (1996) 88 A Crim R 226, considered.

NGUYEN v POLICE
[2009] SASC 255
Magistrates Appeal

SULAN J: Nam Hoang Nguyen was convicted of 23 counts of theft. At the time of the offences, he was employed as a bank officer with BankSA. Between 11 March 2005 and 20 March 2005, the appellant used the debit card of a customer, whom he had served on an earlier occasion to effect 20 cash withdrawals totalling $10,000. On 24 and 25 June 2006, the appellant used the credit card of another customer to withdraw cash of $600.
The appellant was sentenced to a total of 12 months’ imprisonment with a non-parole period of six months’ imprisonment. The appellant abandoned the ground of appeal that the sentence is manifestly excessive. He submitted that the Magistrate erred in not suspending the sentence. On 20 August 2009, I allowed the appeal. I re-sentenced him to 11 months and two weeks’ imprisonment, and suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years. That sentence took into account the 14 days the appellant had spent in custody. The appellant agreed to be supervised by a Community Corrections Officer, and to undergo such psychological or psychiatric treatment as directed by that officer. The order that he pay compensation of $10,600 remains. I now publish my reasons.
Background
The appellant was convicted after a trial in the Magistrates Court. The appellant made restitution of $4,500 prior to being sentenced. He was unable to make further restitution as, by that stage, he was unemployed, having lost his position at the bank. He continues to rely on, Centrelink benefits. I am informed by his counsel that arrangements have been made with the Fines Unit to continue to make compensation payments in favour of the bank to pay off the balance of monies…

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: [2009] SASC 255
Decision Date: 20 August 2009

CaseChat Overview and Summary

The appellant, who was convicted of 23 counts of theft, appealed the sentence imposed by the Magistrates Court. The Magistrate sentenced the appellant to a total of 12 months’ imprisonment with a non-parole period of six months. The appellant was also ordered to make restitution payments. The appellant argued that the Magistrate erred in not suspending the sentence, and the appeal was allowed on this basis. The legal issue before the court was whether the Magistrate erred in not suspending the sentence and whether there was good reason to do so.

The court found that the Magistrate erred in not giving sufficient weight to the appellant’s requirement for ongoing treatment of his psychological problems and the likely effect of an immediate custodial sentence. The court considered the appellant’s age at the time of the offending, his lack of a criminal record, his current employment status, and his ongoing studies. The court also noted that the appellant had made partial restitution payments and had arranged to continue making payments to the Fines Unit. The court found that there was good reason to suspend the sentence and that the appellant should be given an opportunity to address his psychological issues and reintegrate into society.

The court re-sentenced the appellant to 11 months and two weeks’ imprisonment, suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years. The sentence took into account the 14 days the appellant had already spent in custody. The court also ordered the appellant to be supervised by a Community Corrections Officer and to undergo such psychological or psychiatric treatment as directed by that officer. The order that the appellant pay compensation of $10,600 remains. The court’s decision recognised the appellant’s need for treatment and the potential benefits of a suspended sentence in allowing the appellant to address his issues and reintegrate into society.

The court’s final orders were that the sentence imposed by the Magistrates Court be set aside, and that the appellant be re-sentenced to 11 months and two weeks’ imprisonment, suspended upon the appellant entering into a bond to be of good behaviour for two years. The appellant was also ordered to be supervised by a Community Corrections Officer and to undergo such psychological or psychiatric treatment as directed by that officer. The order that the appellant pay compensation of $10,600 remains.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was sentenced to a total of 12 months’ imprisonment with a non-parole period of six months’ imprisonment. The appellant abandoned the ground of appeal that the sentence is manifestly excessive. He submitted that the Magistrate erred in not suspending the sentence. On 20 August 2009, I allowed the appeal. I re-sentenced him to 11 months and two weeks’ imprisonment, and suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years. That sentence took into account the 14 days the appellant had spent in custody. The appellant agreed to be supervised by a Community Corrections Officer, and to undergo such psychological or psychiatric treatment as directed by that officer. The order that he pay compensation of $10,600 remains. I now publish my reasons. Background The appellant was convicted after a trial in the Magistrates Court. The appellant made restitution of $4,500 prior to being sentenced. He was unable to make further restitution as, by that stage, he was unemployed, having lost his position at the bank. He continues to rely on, Centrelink benefits. I am informed by his counsel that arrangements have been made with the Fines Unit to continue to make compensation payments in favour of the bank to pay off the balance of monies still owing to the bank. The Magistrate imposed convictions on all counts. As to the offences which occurred between 11 March 2005 and 20 March 2005, the Magistrate imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), of nine months’ imprisonment. In respect of the offences which occurred in June 2006, the Magistrate again imposed one penalty pursuant to s 18A of the Act of three months’ imprisonment, to be served cumulatively upon the nine months’ sentence of imprisonment imposed for the 2005 offences. That resulted in a total of 12 months’ imprisonment. The Magistrate fixed a non-parole period of six months’ imprisonment. The Magistrate considered whether there was good reason to suspend the sentence. He said:I have given anxious consideration to the question of suspension. In my view, factors personal to you are outweighed by the seriousness of your conduct. I am unable to find good reason to suspend the gaol term and I decline to do so. He directed that the sentence and non-parole period commence from the day of sentence on 11 June 2009. The appellant was taken into custody and released on bail, pending appeal, on 25 June 2009, having spent 14 days in custody. The offending commenced when the appellant was 23 years of age. He was 27 years of age when the Magistrate sentenced him. When the Magistrate sentenced the appellant, no explanation was given for the offending. At that time, the appellant was in denial. He had no criminal record. The appellant resides with his parents, who are divorced but live in the same house. The situation at home is difficult for the appellant, as his parents do not talk, although they live in the same house. The appellant has a partner of five years’ standing, who also lives at his parents’ home. The appellant has not worked since losing his position with the bank. He is undertaking tertiary studies in marketing, and relies upon Centrelink benefits.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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