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Nguyen v R

Nguyen v R

Case [2008] NSWCCA 308 16 December 2008

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New South Wales
Court of Criminal Appeal

CITATION: Nguyen v R [2008] NSWCCA 308

HEARING DATE(S): 5 December 2008

JUDGMENT DATE:
16 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Howie J at 40

DECISION: Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Co-offenders originally dealt with together - Subsequent quashing of sentences on one of them - New sentencing proceedings regarding that offender - New findings by resentencing judge - Appeal by other offender - Parity with co-offender's resentence - Resentence arguably inadequate - No justifiable grievance in the circumstances

LEGISLATION CITED: s 166 Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Hodges v R [1997] 95 A Crim R 85
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Boney [2001] NSWCCA 432
R v Diamond (NSWCCA, unreported 18/2/93
R v Doggert (NSWCCA, unreported 24/3/96)
R v Ilbay [2006] NSWCCA 251
R v Wei Pan [2005] NSWCCA 114

PARTIES: John NGUYEN - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/2788

COUNSEL: G N Whitehead - Applicant
V Lydiard - Respondent/Crown

SOLICITORS: Nyman Gibson Stewart - Applicant
S Kavanagh - Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0835

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 20 October 2006

CCA 2007/2788

McCLELLAN CJ at CL
GROVE J
HOWIE J
16 December 2008

John NGUYEN v REGINA

Judgment

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

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bennett DCJ at Parramatta District Court on 20 October 2006. The applicant and a co-accused William Le each pleaded guilty to an indictment containing four counts, jointly charging them with specially aggravated kidnapping and three counts of robbery in company. Those offences carry maximum available penalties of 25 years and 20 years imprisonment respectively.

3 The applicant was sentenced on the first count of kidnapping to imprisonment consisting of a non-parole period of 6 years commencing on 10 November 2004 and expiring on 9 November 2010 with a balance term of 2 years, and on each of the counts of robbery to a non-parole period of 3 years with a balance term of 1 year to be served concurrently with each other and concurrently with the imposition on count 1. Pursuant to s 166 of the Criminal Procedure Act his Honour dealt with a further offence of driving whilst licence suspended in respect of which no penalty was imposed but an automatic disqualification came into effect.

4 Bennett DCJ sentenced Le to imprisonment consisting of a non-parole period of 2 years 6 months commencing on 2 October 2006 with a balance term also of 2 years and 6 months for the kidnapping and non-parole periods of 2 years with balance terms of 1 year on each of the robbery counts to be served concurrently with each…

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 R

Details

AGLC: Nguyen v R [2008] NSWCCA 308
Case: [2008] NSWCCA 308
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of Nguyen v R involved a dispute over the sentencing of two co-offenders who were initially dealt with together. Nguyen and another individual were convicted and sentenced for their involvement in criminal activities. However, the sentence of one of the co-offenders was subsequently quashed by the High Court. The re-sentencing judge was required to conduct new proceedings regarding that offender and made new findings which led to a resentencing. Nguyen, the other offender, appealed against his sentence, arguing that it was inadequate in comparison to the re-sentence of the co-offender. The appeal centred on the question of whether there was a justifiable grievance in the circumstances that warranted a parity between the sentences of the two co-offenders.

The court had to determine whether the principle of parity between co-offenders' sentences was applicable in the context of new sentencing proceedings following the quashing of one of the co-offenders' sentences. The court considered the circumstances surrounding the new findings made by the resentencing judge, as well as the adequacy of the sentence imposed on Nguyen. The court also had to consider whether there was a justifiable grievance that warranted a parity between the sentences of the two co-offenders. In delivering the judgment, the court held that the principle of parity between co-offenders' sentences was not applicable in the circumstances of this case. The court found that there was no justifiable grievance in the circumstances that would warrant a parity between the sentences of the two co-offenders.

The court determined that the resentencing judge had made new findings based on the specific circumstances of the case, and that the sentence imposed on Nguyen was not inadequate. The court found that the resentencing judge had carefully considered the evidence and the circumstances of the case when determining the sentence. The court also held that the principle of parity between co-offenders' sentences was not a mandatory requirement, and that it was not applicable in this case due to the unique circumstances. The appeal was ultimately dismissed, and the sentence imposed on Nguyen was upheld. The court's decision in this case provides important guidance on the application of the principle of parity between co-offenders' sentences in the context of new sentencing proceedings following the quashing of one of the co-offenders' sentences.

Orders